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Summary

I
am Burmese and a migrant worker that is why the police don’t care about
this case.... [M]y husband and I are only migrant workers and we have no rights
here.

—Aye Aye Ma, from Burma, who was raped by two unknown
Thai assailants after they shot and killed her husband on November 5, 2007, in
Phang Nga province

As
“Thailand” means the “land of the free,” it is our
Government’s policy to ensure that migrants can enjoy their freedom and
social welfare in Thailand while their human rights are duly respected....
[M]igrant workers, regardless of their legal status, can seek justice in
Thailand’s court system for any violent abuses to which they have been
subjected, and which are covered by these laws.

—Prime Minister Abhisit Vejjajiva, on October 5,
2009, Bangkok

The thousands of migrant workers from Burma, Cambodia, and
Laos who cross the border into Thailand each year trade near-certain poverty at
home for the possibility of relative prosperity abroad. While most of these
bids for a better life do not end as tragically as that of Aye Aye Ma, almost
all play out in an atmosphere circumscribed by fear, violence, abuse,
corruption, intimidation, and an acute awareness of the many dangers posed by
not belonging to Thai society.

From the moment they arrive in Thailand, many migrants face
an existence straight out of a Thai proverb—escaping from the tiger, but
then meeting the crocodile—that is commonly used to describe fleeing from
one difficult or deadly situation into another that is equally bad, or
sometimes worse. Migrant workers are effectively bonded to their employers and
at risk of rights violations from government authorities. In many cases, police,
military, and immigration officers, and other government officials threaten,
physically harm, and extort migrant workers with impunity. Those detained face
beatings and other abuses. And whether documented or undocumented, migrants in Thailand are especially vulnerable to abusive employers and common crime, which the Thai
authorities are very reluctant to investigate and sometimes are complicit in.

In interviews in Thailand from August 2008 to May 2009 and
in follow-up research through January 2010, we found evidence of widespread violations
of the rights of migrant workers from Burma, Cambodia, and Laos. The violations are not limited to one or two areas but range the entire length of the country
from the Thai-Lao border gateway towns in Ubon Ratchathani to the seaports on
the Gulf of Thailand to remote crossroads in areas on the Thai-Burma border.
Many types of abuses are either embedded in laws and local regulations, such as
restrictions on freedom of movement, or are perpetrated by officials, such as
extortion by the police.

Human rights violations inflicted on migrants by police and
local officials are exacerbated by the pervasive climate of impunity in Thailand. Migrants suffer silently and rarely complain because they fear retribution, are
not proficient enough in the Thai language to protest, or lack faith in Thai
institutions that too often turn a blind eye to their plight.

An in-depth interview with a long-time police informant, a
Burmese migrant named Saw Htoo, provided alarming insight into the workings of
the Thai police. Saw Htoo described beatings of migrant workers in detention,
sexual harassment, and extortion. Saw Htoo told Human Rights Watch, “When
they are doing the beating, usually the police use their hands. They like to
slap the cheeks of the people. Mostly they hit with hands and kick. They
don’t use weapons in the beatings. When the migrant who is arrested talks
to the police, he needs to keep his head down when talking—because if a
migrant looks at the police’s face while talking, the police will hit
him.”

Beyond threats of ill-treatment, extended detention, and
deportation, migrants constantly fear extortion by the police. Nearly all
migrants held in police custody that we interviewed said that police had
demanded money or valuables from them or their relatives in exchange for their
release. Migrants reported paying substantial bribes depending on the area, the
circumstances of the arrest, and the attitudes of the police officers involved.
It is not uncommon for a migrant to lose the equivalent of one to several
months’ pay in one extortion incident. And if they do not possess enough
money to be released, frequently the arresting officers ask whether they have
relatives or friends willing to pay to secure their release.

Migrants’ daily lives are restricted in many other
ways as well. Migrant workers are prohibited from forming associations and
trade unions, taking part in peaceful assemblies, and face restricted freedom
of movement. Often they cannot leave the area where their work is located
without written permission from employers and district officials. The
government prohibits migrants from obtaining driver’s licenses.
Governmental decrees in the provinces of Phang Nga, Phuket, Surat Thani,
Ranong, and Rayong sharply curtail basic rights of migrants, including by
prohibiting migrants from registering motor vehicles, owning mobile phones, or
being outside their work or living premises after designated curfew hours. In
December 2009, the Department of Land Transport made an important decision to
permit registered migrant workers to apply for and receive motorcycle ownership
documents, but the Thai government has yet to rule on the legal relationship of
this new policy and the restrictions in the provincial decrees.

As a result, migrants find themselves arbitrarily stopped by
police—or police imposters—searched, and relieved of their
motorcycles, cell phones, and other valuables. As Burmese worker Say Sorn said,
“It feels like I’m caged here. I have gone to Bangkok on a few
trips ... but I am worried that if I am stopped by a police checkpoint ... I
will be arrested because I am not Thai.”

Thai police often fail to actively investigate ordinary
crimes against migrants as well as human rights violations by authorities. Migrants’
lack of trust in police is underscored by the frequent number of instances,
several documented in this report, in which Thais who have committed beatings
or other physical abuses against migrants have then called the police to arrest
and detain the migrant.

Migrant workers from Burma, Cambodia, and Laos make up a significant portion of the workforce in Thailand, with estimates ranging from 1.8
million to as many as 3 million workers and accompanying family members,
roughly equivalent to 5 to 10 percent of the workforce. Partly due to the vagaries
of registration, there are more undocumented than documented migrant workers in
Thailand. But documented workers said they too are vulnerable to arbitrary
arrest, financial shakedowns for release, and physical abuse. Employers often
hold migrants’ worker ID cards, the keys to their legal presence in the country.
They also retain the power to sign—or not sign—the crucial transfer
forms that allow migrants to change jobs and retain their legal status.

Human Rights Watch found many serious abuses of migrants’
rights in the workplace. Workers who sought to organize and collectively assert
their rights were subject to intimidation and threats by their employers, and retaliation
if they filed grievances with Thai authorities. Both registered and unregistered
migrant workers complained of physical and verbal abuse, forced overtime and
lack of holiday time off, poor wages and dangerous working conditions, and
unexplained and illegal deductions from their salary. When migrant workers miss
a day or more of work, they often forfeit whatever outstanding wages are owed
them. And migrant workers who might complain of mistreatment must always be on
guard against employers who would take advantage of their lack of citizenship
by calling in immigration officials, police, and even well-connected local
thugs who act with impunity.

Police commonly extort money and valuables from migrants,
either when they are stopped by police or while the migrant is in police
detention. Migrants reported paying bribes ranging from 200 to 8000 baht or
more, depending on the area, the circumstances of the arrest, and the attitudes
of the police officers involved. For detained migrants who do not possess
enough money to be released, frequently the arresting officers asked whether
they had relatives or friends willing to pay to secure their release.

The Thai Constitution of 2007 guarantees basic human rights.
And Thailand is a party to the major human rights treaties, which provide that
non-citizens are entitled to the same rights as citizens, except for political
rights such as voting or running for office. Unfortunately, the Thai government
has done little to ensure basic rights are extended to migrant workers and
their families.

Thai government policies on migrant worker registration and
residence are complex and frustrating for many migrants and their advocates. The
requirements, conditions, and costs to migrants of remaining in Thailand legally have undergone significant changes since 1996. New formal migration
channels have so far been underutilized due to the complexities and slowness of
procedures, and higher costs involved.

A policy announced in 2008 requires registered migrant
workers to verify their nationality with officials of their own government.
This means more than one million registered Burmese migrant workers must apply
before February 28, 2010 to return to Burma and seek the approval of the
Burmese military government to receive a temporary passport, and complete the
process before February 28, 2012. To date very few have applied, with many
justifiably citing fears of possible criminal sanction in Burma for originally leaving the country illegally. A crackdown on undocumented migrant workers, and
those registered workers who fail to enter the nationality verification
process, may begin in March 2010. In preparation, on December 29, 2009, Deputy
Prime Minister Sanan Kachornprasart issued an order that established a
high-level inter-agency committee led by the police who will lead efforts to
arrest and prosecute migrants.

Thai government policy towards migrant workers has been
largely shaped by national security concerns, as reflected in the language used
in the five provincial decrees analyzed in this report and provisions of the
Alien Employment Act of 2008. Government officials often regard migrant workers
from neighboring countries as a potential danger to Thai communities, the
interests of Thai workers, and national sovereignty. Public statements by
senior Thai military and police officials, provincial decrees severely restricting
migrants’ rights, and provisions of law all reflect this policy
orientation, which manifests itself most concretely in the nearly absolute
control that the Thai migration registration system grants to employers over
migrant workers.

Corruption and criminal behavior by local police and other
officials fuels a system of impunity in which rights violations by the
authorities and common crimes against migrants frequently are either not
investigated or fail to receive proper follow-up.

In the case of Aye Aye Ma, the woman quoted at the start of
this report who was raped and whose husband was killed, for example, the police
launched an investigation but the case has languished. Despite the discovery of
semen at the crime scene that could be submitted for DNA testing and a police
report that identified a Thai man from the area as a suspect, the case
apparently never advanced beyond the initial stage. Aye Aye Ma, migrant
advocates working on her case, and her Thai employer all told Human Rights
Watch they believe her migrant status is the primary reason for the lack of
police follow-through on the case.

Aye Aye Ma’s experience with law enforcement is not
uncommon. While it is possible for migrant workers to achieve a measure of
justice in certain high profile cases, the norm is one in which police
discretion is paramount, and impunity for abuses against migrants is pervasive.

As the quotation of the Prime Minister on October 5, 2009,
shows, the Thai government at the highest levels has been vociferous in asserting
its commitment to upholding human rights for migrant workers. At the UN Human
Rights Council in Geneva in June 2009, the Thai government declared its support
for migrant worker rights, responding to an intervention by Human Rights Watch
by stating “The Thai Government stands ready, ... to cooperate with all
stakeholders in guaranteeing the basic rights of migrant workers, including,
but not limited to, the NGOs and international mechanisms such as the [UN
Special Rapporteur on the Human Rights of Migrants].”

Human Rights Watch welcomes this commitment and looks
forward to engaging with the Thai government on its treatment of its migrant
population. But our research shows that the Thai government is violating the
civil and economic rights of migrant workers set forth in the core human rights
treaties to which Thailand is party.

The Thai government is reforming its policies towards
migrants by adopting nationality verification procedures and revamping the use
of government-to-government recruitment schemes. But so far only a small
percentage of registered migrant workers have gone through nationality
verification, and even fewer have entered Thailand through the formal
recruitment channel set out in each bilateral agreement between Thailand and
its three neighbors—Burma, Cambodia, and Laos. Serious difficulties with
the nationality verification policy may make it hard for employers to legally
maintain their migrant workforces in the near future.

Our research found government sanctioned discrimination and
denial of status to migrants creates the conditions for flourishing corruption
and extortion by local police and other officials which remain all too easily
hidden from national authorities. Neither employers nor their migrant workers
benefit from a situation in which corrupt officials have greater leeway to
extort money in exchange for ignoring undocumented workers. But decisions on
migration policies remain strongly influenced by national security agencies and
their focus on maintaining structures and rules that permit close and
continuous control of migrants, and effectively discourage migrants’
rights to freedom of assembly, association, expression, and movement. How the
Thai government resolves the relationship between migrants’ human rights
and security concerns will determine the course of its policies.

Key Recommendations

To address the human rights violations faced by migrants, the
Royal Thai government should promptly:

Establish a special commission to independently and
impartially investigate allegations of systematic violations of the basic
rights of migrants by police and other Thai authorities across the
country. The commission should have the power to subpoena witnesses and
compel provision of documentary evidence, and produce a public report. It
should be empowered to make recommendations for criminal investigations in
specific cases and for changes in laws, regulations, and policies that
adversely affect the human rights of migrants.

Immediately revoke provincial decrees restricting migrant worker’s
rights in Phang Nga, Phuket, Ranong, Rayong, and Surat Thani provinces,
and institute all necessary measures to ensure that the governors of all
Thai provinces respect the fundamental rights of both documented and
undocumented migrants.

Take all necessary measures to end torture and ill-treatment
of migrants in custody. Ensure that all allegations of mistreatment are
promptly and thoroughly investigated and that all those responsible are
appropriately prosecuted.

Amend articles 88 and 100 of the Labor Relations Act of
1975 to allow for persons of all nationalities to apply to establish a
trade union and serve as a legally recognized trade union officer, and
ensure that the revised Labor Relations Act is fully in compliance with
the standards set out in International Labor Organization Convention No. 87
(Freedom of Association).

Methodology

This report is based on interviews conducted between August
2008 and May 2009 by a team of researchers from Human Rights Watch, MAP
Foundation, and the Yaung Chi Oo Workers Association (YCOWA). A total of 82
detailed individual interviews were conducted with migrants residing in Thailand, comprising 67 Burmese, 8 Laotian, and 7 Cambodian migrants. This work was
supplemented by additional research and follow-up telephone interviews with
migrant workers, NGO advocates, and government officials through January 2010.

We conducted interviews in Bangkok and in 10 different
provinces so that our findings would reflect the different areas where migrants
live and work across the country and the varying government policies in effect.
Provincial government decrees in the provinces of Phang Nga, Phuket, Surat
Thani, Ranong, and Rayong severely limit migrant workers’ rights. The
provinces of Tak, Trad, and Ubon Ratchathani are major gateway provinces where
migrants enter Thailand from Burma, Cambodia, and Laos. Samut Sakhon province
is a major migrant-receiving province in the central plains of Thailand, subject to increased controls because of its close proximity to the capital city of Bangkok. Chiang Mai province has a significant influx of ethnic Shan from Burma, and has experienced high-profile police crackdowns on migrant worker use of motorcycles. The
abuses described in this report reflect events that took place after December
1, 2006, when the major provincial decrees restricting migrant workers came
into effect.

Wherever possible and in most cases, the interviews were
held in private, but several were in the presence of relatives and friends of
the interviewee. Human Rights Watch also conducted four group interviews with
migrant workers in Chiang Mai, Phang Nga, Ubon Ratchathani, and Samut Sakhon. Interviews
were generally conducted in the migrants’ language, sometimes with
translation into Thai or English. All interviews used a questionnaire jointly
developed in July 2008 by the research team, which is included as an appendix
to this report. Researchers selected migrants for interview according to their
knowledge of local migrant communities and their experience of human rights
violations. Many were referred to us by local migrant organizations and other
NGOs.

We have disguised the identity of all migrants we interviewed
with pseudonyms and in some cases have withheld certain other identifying
information to protect their privacy and safety.

Human Rights Watch and its research partners ensured that
all interviewees were informed of the purpose of the interview, its voluntary
nature, and the ways in which the data would be collected and used. All orally
consented to be interviewed and all were told that they could decline to answer
questions or could end the interview at any time.

To supplement formal interviews with migrants, we also
conducted interviews with around two dozen NGO staff members working with
migrant workers, lawyers and legal advocates, United Nations officials, and
Royal Thai government officials, including those from the National Human Rights
Commission, Ministry of Labor, Ministry of Social Development and Human
Security, and Ministry of Interior. Contacts with the Royal Thai police took
place in Bangkok, Pattani, Ranong, and Songkhla provinces but were deliberately
limited because of security concerns.

In preparing this report, Human Rights Watch also closely
reviewed Thai government documents and laws regarding migration and we
consulted reports written by UN and intergovernmental agencies, NGOs, and migrant
worker associations.

I. Failures of Thai Migration
Policy

Labor Migration to Thailand

Migrant workers from Burma, Cambodia, and Laos make up a significant portion of the workforce in Thailand, with estimates ranging from 1.8
million to as many as 3 million workers and their family members, roughly
equivalent to five to ten percent of Thailand’s workforce, plus their
families.[1]

Long porous borders, ubiquitous networks of brokers and
people smugglers, and the promise of high wages attract many Burmese, Cambodians,
and Laotians to migrate to Thailand. In areas along Burma’s eastern
border, Burmese ethnic minority migrants are fleeing human rights abuses by the
Burmese government and armed forces and ethnic minority armies, as well as the
economic hardship endemic to the region.[2]

Significant wage differences between Thailand and migrants’ home communities are factors encouraging migration. Migrants find they
can earn more in Thailand, even when employers pay sub-minimum wages in
violation of Thailand’s Labor Protection Act of 1998 (LPA).[3]
Youth unemployment and underemployment in Burma, Cambodia, and Laos remain higher than in Thailand, as do current birth rates and the numbers of youth as a
percentage of overall population.[4]
Migration to Thailand has increasingly become an economic survival strategy for
numerous rural families in neighboring countries.[5]

Thai employers complain it is becoming harder to find and
recruit Thais into low-wage, labor-intensive work. Yet rather than upgrading
workplace safety and improving wages, working conditions, and management
practices, these same Thai employers turn to migrant workers who offer a fully
flexible and cheaper workforce willing to do dirty, difficult, and dangerous
jobs. Given the poverty that many migrants are fleeing and lack of protection
offered by Thai authorities, employers frequently compel migrants to work long,
exploitative hours, including through the night and on holidays. Employers find
them easier to control because they either do not know of or are too intimidated
to assert their rights under Thai labor laws.[6]
They can be fired at will, and are less likely to organize a union or
association to contest employer prerogatives. Employers often force migrants to
accept daily wages and overtime rates below the legal minimum wage or
intimidate and cheat them out of wages.[7]

Numerous Thai industries such as fishing and seafood
processing, construction, agriculture and animal husbandry, and manufacturing
(garment, textiles, and footwear) have essentially become dependent on
documented and undocumented migrant workers as the core of their workforce. These
low-cost workers in turn help maintain Thai export competitiveness.[8]

Regulatory Gaps and
Failures

The majority of Burmese,
Cambodian, and Laotian migrants to Thailand are undocumented, heightening the
risk of abuse while compromising their access to legal protections and redress
mechanisms. Undocumented migration is abetted by a weak migrant registration
system in Thailand and ineffective or poorly implemented bilateral migration
management schemes between Thailand and each of its three neighbors, defined in
written memorandums of understanding (MOUs) on employment. Securing official
travel documents is typically difficult, time-consuming, and expensive and most
migrants do not obtain such documents.[9]
A symbiotic relationship between people smugglers and corrupt government
officials facilitates movement of migrants and placement in jobs, and, in some
cases, contributes to human trafficking.[10]

While recognizing the continued importance of migrant
workers to the Thai economy and the right of Thailand to regulate its workforce,
Thai government policy continues to be dominated by national security concerns
with little regard to workers’ basic rights. Provisions of the Alien
Employment Act of 2008 illustrate clearly this undue emphasis on national
security considerations. The act determines what work can be done by non-Thai
workers and requires the location and duration of that work be determined in
ministerial regulations that must explicitly take into consideration concerns
of national security.[11]
It provides broad discretion for investigators to conduct searches without
court warrants if they believe there are undocumented workers on the premises.[12]
The law imposes stiff criminal penalties, including imprisonment up to five
years, on undocumented workers.[13]

Particularly worrisome are regulations accompanying the law that
provide payments to informers for providing information or assistance in
locating and leading to the arrest of undocumented migrant workers. NGO
advocates continue to raise concern about this provision as providing an avenue
for vigilantism against migrant workers.[14]
The law also provides authority for an alien worker levy that is designed to
discourage the use of migrant workers, though this legal provision has not yet
been implemented. Reflecting the government’s insistence that
migrant workers are temporary, the Alien Employment Act also requires employers
to make deductions from migrant workers’ pay into a government-controlled
fund to cover the costs of deporting migrant workers.[15]

In principle, migrant workers are accorded the same rights
under Thai labor laws as Thai nationals except for specific exclusions on the
right to establish and lead a labor union. In each of the bilateral MOUs on
employment of migrant workers between Thailand and its three neighbors, there
is a specific provision guaranteeing that migrant workers will be protected in
accordance with all laws of the receiving state.[16]

A new Thai migration policy requires that by February 28,
2010, all documented migrant workers in Thailand must formally apply to go
through a nationality verification process with officials of their own
government. All workers who do not apply will become undocumented from March 1,
2010, onwards.[17]
After verification, migrants will receive a temporary passport from their own
government in which a visa issued directly by Thai Immigration will be placed,
thereby legalizing their entry into Thailand. Migrants with a temporary
passport and visa will be permitted to travel throughout Thailand without restriction, which is a positive development for migrants’ rights. Unlike
arrangements with Cambodia and Laos in which verification is done by consular
officials of those countries in Thailand, the State Peace and Development
Council (SPDC) government in Burma insists that all Burmese migrants must
return to one of three border towns in Burma—at Kawthaung, Myawaddy, or
Tachilek—to apply for nationality verification. By September 25, 2009,
118,916 migrant workers had completed the nationality verification
process—57,609 Cambodians and 58,430 Lao, but only 2,877 Burmese.[18]

Nationality verification for Burmese started on July 15,
2009,[19]
but since verification is determined by the SPDC, the procedures exclude ethnic
Rohingya, a Muslim minority population in Burma that has long been denied
citizenship by the Burmese government.[20]
Burmese migrant workers report they are gravely afraid of being forced to
reveal information to the SPDC about their relatives and family in Burma, subjecting them to possible reprisals or extortion.[21]
Many long-term migrants, especially those from the Shan and Karen ethnic groups
whose political leadership has been involved in long-term insurgencies against
the Burmese military government, also expect they will not be included on SPDC
citizenship registration lists. Finally, migrants express fear that they could
face retaliation for returning to Burma without a passport or other appropriate
document, which is a violation of Burma’s Immigration Act of 1947
(Emergency Provisions) and can involve penalties of six months to five years in
prison, and a fine.[22]

A coalition of Thai trade unions and NGOs filed a complaint
with the UN special rapporteur on the human rights of migrants concerning the
Thai government’s failure to provide accurate information about
nationality verification or to rein in illegitimate brokers who defraud and
overcharge workers.[23]
Refugee advocates have expressed concerns about mixed flows of migrant workers
and persons fleeing persecution from Burma who are shut out from asylum
procedures because of the Thai government’s unwillingness to allow
screening of migrants for refugee status, including the more than 200,000
ethnic Shan long excluded from consideration as refugees as a matter of Thai
policy.[24]

Both nationality verification and the opening of new, formal
migration channels have far underperformed expectations, raising fundamental
concern about whether these mechanisms are able to effectively replace the
current migrant registration scheme. Efforts to persuade new migrant workers to
enter Thailand through formal channels set out in bilateral MOUs also have
foundered because of higher costs, longer delays in placement than the informal
migration processes, weak implementation, and disagreements on issues related
to recruitment and use of agencies. By the end of December 2007, just 14,151
migrant workers (7,977 Cambodians, 6,174 Laotians, but no Burmese) had traveled
through formal government-to-government migration channels to be placed in jobs
in Thailand.[25]

The Thai government’s national security concerns
appear to extend to migrant children and newborns. Gen. Sonthi Boonyaratglin,
the deputy prime minister who led the 2006 military coup d’etat, reportedly
said on a visit to Samut Sakhon in November 14, 2007, that Thailand would solve the problem of migrant children by arranging for deportation of all pregnant
migrant women and that Thailand’s National Security Council (NSC) would
take the lead in this initiative. General Sonthi, who at the time was also the
head of Internal Security Operations Command (ISOC), stated:

There have been many problems concerning high birthrates,
disease control, conflicts with Thai people and among themselves along with
social issues, which will all become long-standing problems. They [the
migrants] may demand more and more for their rights. These problems may become
unsolvable one day.[26]

NGOs, mainstream media, lawyers, and other groups strongly
condemned the proposal, which was quietly allowed to lapse when Prime Minister
Gen. Surayudt Chulanont’s military-appointed government stepped down in
December 2007.[27]
But the initial proposal reaffirmed the perception among registered migrant
workers that Thai government policy is discriminatory, and government officials
cannot be trusted to ensure that their basic rights are respected. Even though
Gen. Sonthi was unable to implement his proposed policy, there was a chilling
effect on pregnant migrant women’s willingness to seek medical
assistance.[28]

In a positive move made in October 2009, the Thai government
began permitting registration of children of registered migrant workers holding
work permits. However, in some cases, local officials insist on onerous
documentation requirements that effectively frustrate this benefit.[29]

Migrants Rights under International Law

Thailand is party to the major international human rights
treaties, including the International Covenant on Civil and Political Rights
(ICCPR),[30]
the International Covenant on Economic, Social and Cultural Rights (ICESCR),[31]
the International Convention on the Elimination of all Forms of Racial
Discrimination (ICERD),[32]
and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention against Torture).[33]
Thailand has also ratified many, but not all, of the major labor rights
conventions of the International Labor Organization (ILO).

International human rights law protects the rights of
non-citizens as well as citizens. Under the ICCPR, a state is obligated to
respect and ensure the human rights of “all individuals within its
territory.”[34]
Non-citizens who have entered and reside in a state are entitled to all rights
under the ICCPR except political rights, such as the right to vote and run for
office.[35]
Thus while article 25 of the ICCPR limits political rights to “[e]very
citizen,” article 26 ensures that “All persons are equal
before the law and are entitled without any discrimination to the equal
protection of the law”[36]

These protections
for migrants extend to economic, social, and cultural rights. According to the
Committee on Economic, Social and Cultural Rights in its General Comment No. 20
on non-discrimination, “The
ground of nationality should not bar access to Covenant rights.... The Covenant
rights apply to everyone including non-nationals, such as refugees,
asylum-seekers, stateless persons, migrant workers and victims of international
trafficking, regardless of legal status and documentation.”[37]

While the
convention against racial discrimination, ICERD, provides for the possibility
of differentiating between citizens and non-citizens,[38]the Committee on the Elimination of Racial Discrimination
(CERD) in its General Recommendation on discrimination against non-citizens,
noted that this provision “must be construed so as to avoid undermining
the basic prohibition of discrimination” as set out in other human rights
treaties, such as the ICCPR and the ICESCR.[39]Thus while some political rights may be confined to
citizens, states are under an obligation to guarantee equality between citizens
and non-citizens as recognized under international law.[40]Therefore, “differential treatment based on
citizenship or immigration status will constitute discrimination if the
criteria for such differentiation, judged in the light of the objectives and
purposes of the [ICERD], are not applied pursuant to a legitimate aim, and are
not proportional to the achievement of this aim.”[41]

Of particular relevance to the administration of justice in Thailand, the CERD recommends that states “[e]nsure that non-citizens enjoy equal
protection and recognition before the law and ... ensure the access of victims
to effective legal remedies and the right to seek just and adequate reparation
for any damage suffered as a result of [discriminatory] violence.”[42]The CERD also calls for states to “[c]ombat
ill-treatment of and discrimination against non-citizens by police and other
law enforcement agencies and civil servants by strictly applying relevant
legislation and regulations providing for sanctions and by ensuring that all
officials dealing with non-citizens receive special training, including
training in human rights.”[43]Claims of discrimination brought by non-citizens should be
“investigated thoroughly,” and those against officials should have
“independent and effective scrutiny.”[44]

The CERD also urges states to remove obstacles that prevent
the enjoyment of economic, social, and cultural rights by non-citizens, notably
in the areas of education, housing, employment, and health.[45]States should also “[t]ake measures to eliminate
discrimination against non-citizens in relation to working conditions and work
requirements, including employment rules and practices with discriminatory
purposes or effects,”[46]
and “to prevent and redress the serious problems commonly faced by
non-citizen workers, in particular by non-citizen domestic workers, including
debt bondage, passport retention, illegal confinement, rape and physical
assault.”[47]The CERD noted that while states may refuse to offer jobs
to non-citizens who lack a work permit, all individuals working are entitled to
the enjoyment of labour and employment rights, including the freedom of
assembly and association.[48]

II. Provincial Decrees—Controls on Migrant
Workers

The overwhelming emphasis on presumed national security considerations
in Thai government policy on migrant workers is also demonstrated by draconian
decrees restricting migrants’ rights in five provinces (Phang Nga,
Phuket, Ranong, Rayong, and Surat Thani).[49]
All five provinces host significant numbers of migrant workers. Anusit
Kunnagorn, a representative of the National Security Council (NSC), testified
to the National Human Rights Commission (NHRC) that the NSC and Ministry of
Defense believed it necessary to extend these decrees to all the other
provinces because of problems with the existing migrant registration system.[50]

Three of the five provincial decrees cite concerns for
“national security,” “security of society,” or
“safety of life and assets” as a rationale for the measures, while
the Rayong decree declares that certain groups of migrants “engage in
behavior that make them a danger to society or will cause harm to public order
and peace, and the lives and property of the citizenry.” The provincial
decrees require employers to closely monitor and control their migrant workers.
Some make employers financially responsible for any damages caused by the
migrant workers they have registered, creating an incentive for employers to
confine workers to their workplace. Others decree that failure to control
migrant workers will result in the loss of hiring privileges for the employer
and deportation of the workers concerned.

The provincial decrees violate basic rights due all persons
under international law. Among the key provisions of the provincial decrees are
restrictions on migrant worker gatherings and curfews and severe restrictions
on migrants’ use of mobile phones, motorcycles, and cars.

Even in provinces without specific provincial decrees, Human
Rights Watch found restrictions on rights to freedom of movement, association,
assembly, and ownership of property, though such restrictions were not formally
promulgated in government decrees.

In Samut Sakhon province in central Thailand, a major receiving area for migrant workers from Burma, the provincial governor, Wirayuth
Euamampa, took steps short of a provincial decree. The governor’s October
26, 2007 letter to the provincial Department of Employment and to employers
stressed the need to control migrant workers more closely. The letter posited
that “Burmese migrants give rise to many problems, such as those
involving public health, stateless children, as well as problems of crime and
lawlessness.” Furthermore, the letter continued, “currently there
is the spreading of migrants’ culture through festivals and other various
events and this is not appropriate and should not be supported because it will
give rise to the feeling of community belonging and ownership which could cause
national security problems and are against the Government’s objective of
allowing migrant workers to reside temporarily to work only.” The letter
concluded by stating employers would be held accountable for ensuring proper,
lawful behavior of their migrant employees, including through charges and court
action if needed.[51]

A backlash from migrant worker representatives and NGOs
criticizing Governor Wirayuth of racial bias and lack of cultural sensitivity[52]
compelled him to issue a clarifying letter on November 28, 2007. This letter
informed employers that they could let migrant employees arrange cultural
activities as long as they did not jeopardize Thai national security or have a
negative impact on Thai diplomatic relations with other countries—essentially
banning migrants’ political protests against their home governments.[53]
The NHRC has called for the provincial government of Samut Sakhon to revoke
these two letters, but it has failed to do so.[54]

Migrant workers residing in provinces with these decrees
told Human Rights Watch that since the promulgation of the decrees, police
harassment and extortion has increased, particularly in connection with the seizure
of migrants’ mobile phones and motorcycles. Besides the personal
inconvenience, migrants who are denied mobile phones face greater difficulties
calling for rapid assistance in emergencies. NGOs and migrant worker groups say
that some migrant workers, such as live-in domestic workers, face higher risks
of abuse because of inability to own and use a mobile phone.[55]

Deprived of motorized transport, migrants stated they find
it more difficult to escape violence and access health care in emergencies.
They have fewer options for conducting daily tasks like purchasing food at the
market, sending children to migrant learning centers, or taking classes after
work. For those working in remote agricultural work settings the restrictions
are particularly onerous.[56]

Restrictions on Freedom of Association and Assembly

Various restrictions limit the basic rights of migrant
workers in violation of international law. In Phang Nga, Phuket, and Ranong, a
gathering of five or more migrant workers requires advance written permission
from the government district chief. In Rayong and Surat Thani, any migrant
gathering is prohibited, unless it is cultural or religious.

However, in Surat Thani, even religious activities are shut
down if they have any political characteristics. A Burmese migrant worker reported
the severe reaction of local police from the Muang district station in Surat
Thani province when a local Burmese migrant worker association organized a
religious merit-making event at a Buddhist temple on June 19, 2008, to honor
the 63rd birthday of detained Burmese democracy leader Aung San Suu
Kyi.[57]
With the support of the temple’s abbot, approximately 150 migrants came
offering gifts to Thai monks resident at the temple. Some migrants wore shirts
or other pieces of clothing with Suu Kyi’s visage and the migrants held a
short procession inside the temple grounds holding several signs and two large
photos of Suu Kyi.

Following a tip-off that the police were coming, the
migrants stopped the procession and everyone retreated inside the templeand
waited. Within minutes, the police district commander, accompanied by 12
policemen in eight vehicles, arrived and demanded to know where the protest was
taking place. A test of wills between the abbot and the police commander ensued:
the commander’s insistence that a protest had taken place was met with
denials, while the abbot refused permission for the police to enter the wiharn[58]
to arrest migrants. The police finally agreed that they would only check a
number of migrants selected by the abbot who volunteered to come out of the wiharn
but then seized the migrant worker ID cards of five migrants for further
inspection at the police station.[59]

The association later surreptitiously distributed copies of
a video of the procession taken by migrants. The migrant worker told Human
Rights Watch:

People kept asking me “Wow did you do that?” It
is so hard to do any sort of group activity like that because the police are
always looking out. I know that our association will have a problem with the
police in the future.... They have asked many questions about the association
because they worry we are going to organize the migrants...They always look at
these issues from the security view.[60]

A PowerPoint presentation created by provincial Ranong
police identifies political activities by migrant workers that the police are
seeking to prevent. A video of a protest held by Burmese monks and exiles in
Mae Sot on May 24, 2009, was displayed in a slide entitled “Guarding
against Burmese Buddhist monks entering to perform political activities as in
Mae Sot district, Tak province, leading the Burmese people to demand the
release of Aung San Suu Kyi.”[61]

Restrictions on Freedom of Expression

Whenever we are walking and talking on the street, if the
police see us using the phone they will stop us and take it. If you want to
talk to me about these kinds of cases, you will not be able to finish the interview
today....It happens every day.

—U Win, a migrant
worker from Burma in Surat Thani, August 27, 2008.

While migrants with money can easily secure a mobile phone
and phone number in Thailand through a prepaid SIM card, their ability to use
their phones is heavily restricted.

In Phang Nga and Ranong, decrees forbid migrants from using
mobile phones and explicitly authorize government authorities to seize such
phones on sight, while Phuket requires mobile phone usage to comply with an
unspecified provincial “security policy.”[62]
In Rayong and Surat Thani provinces, the provincial announcements use identical
language stating that migrant workers are not permitted to use mobile phones
because a mobile phone is not considered “a tool for work but instead is
a tool that can convey information easily and quickly, which can impact
national security.”[63]

According to migrants, both government officials and private
citizens seize migrants’ mobile phones in these provinces. Even in remote
villages, like the one in Phang Nga where Burmese migrant worker Soe Myo lives,
the village chief has ordered migrants not to use phones. Soe Myo told Human
Rights Watch, “I sneakily use it [mobile phone], I don’t let them
know or see that I use phone, and when I walk on the street I turn off my phone
and put it in my underwear.”[64]
Soe Myo added that either the village chief or ordinary Thai villagers will
confiscate his phone if they see it. U Ko Nai, from Burma, confirmed he also
takes these precautions but on July 18, 2008, officers from the Highway Police
Division stopped him on a road near his house in Kuraburi district. They extorted
2600 baht (roughly US$78)[65]
and confiscated his mobile phone despite his pleas that he needed it for work. U
Ko Nai said, “The next time I saw that policeman he smiled at me ... I
saw that he carried my phone and used it.... It’s normal for the police,
if they see a good phone they will take it.”[66]

Restrictions on Freedom of Movement

There are many dangers for workers who work at night. For
example, when the workers meet Thai teenager gangs, they are robbed and beaten....The
danger we face is invisible. If we were able to have mobile phones and
motorcycles, we might manage to escape from the danger.[67]

All five provinces with provincial decrees on migrants
impose nighttime curfews restricting migrant workers to their workplaces or
residences. The curfew start times vary from 8 p.m. to 10 p.m. All of the
decrees state that migrant workers may not move within the province without
express written permission from the provincial Department of Employment.

Under all the provincial decrees, migrants are prohibited
from using motorcycles or cars. Thais are not allowed to let migrant workers
drive their vehicles either. When migrant workers are caught with a motorcycle,
the police are likely to make them pay a hefty bribe, lose their motorcycle, or
both. Zaw Zaw, a registered migrant worker from Burma in the construction
industry in Surat Thani described how local police at a checkpoint on June 11,
2008, first took 4500 baht from his wallet, and then confiscated his
motorcycle.[68]
In some cases, local authorities allow the use of motorcycles provided the
migrant is prepared to pay a regular bribe. Kyaw Win, also from Burma, said
where he lives in Surat Thani migrants must pay 500 baht a month to the nearest
local police post or their motorcycle will be seized.[69]

In remote areas, such as rubber plantations, provincial
restrictions on migrants’ use of phones and motorized transport can cause
major difficulties in cases of medical emergencies, such as accidents,
poisonous snake bites, pregnancy and birth, and severe illnesses. Purchasing
food and other daily necessities are made more difficult and expensive by
migrants’ inability to drive motorized vehicles.

Without the ability to communicate or move about by
motorcycle, migrants are more vulnerable to common dangers such as assaults and
extortion by criminal gangs and persons posing as police or other authorities.

Several other provinces, including Chiang Mai and Chumpon,
considered issuing similar decrees but finally abandoned their plans in the
face of intensifying opposition from human rights groups and the media. Yet
restrictions similar to those in the provincial decrees, particularly against
migrants using motorcycles and mobile phones, are enforced by local police in
many places. For instance, in Surat Thani, a documented Burmese worker, Ko
Shwe, told Human Rights Watch how two police arrested him around 11 a.m. one
day in July 2007, searched him, found his mobile phone, and confiscated it. He
said, “The police told me ‘We are allowing you to work in Thailand—not to be happy, and go around, like you are on a picnic.’”[70]

Article 41 of the Thai Constitution of 2007 provides all
persons with the right to own property and the Vehicle Act B.E. 2522 (1979)
contains specific provisions regarding non-nationals’ vehicle
registration for registered migrant workers. Throughout the duration of the
research for this report, vehicle registration was effectively denied to
migrant workers.[71]
But on December 13, 2009, an important step forward was taken when the
Department of Land Transport issued a decision that allows registered migrant
workers to apply for and receive ownership documents for a motorcycle.[72]
However, vehicle ownership is still denied to undocumented migrants, and no
final decision has been made on permitting migrant workers from Burma, Cambodia, and Laos to apply for and receive a driving license. Furthermore, restrictions on
migrants using motor transport under the five provincial decrees have yet to be
rescinded or altered.

Complications involved in ownership and registration of
motorcycles put migrants seeking to own motorcycles at risk. Mi Mi, a migrant
from Burma, said police jailed her husband for receiving stolen property when a
Burmese broker working for a Thai policeman sold him the policeman’s
motorcycle and then failed to give the money to the policeman. Mi Mi said that
even though her husband knew nothing about the arrangements with the policeman,
it was her husband and not the broker who was jailed for two years.[73]

In 2008 Thailand’s National Human Rights Commission
ruled that the provincial decrees violate several core articles of the Thai Constitution
of 2007.[74]
The NHRC declared that the decrees contravene article 30, which provides
“All persons shall be equal before the law and shall enjoy equal
protection under it....Unjust discrimination against a person on grounds of
difference in origin, race, language, sex, age, physical conditions or health,
economic or social status....shall not be permitted.” The NHRC also
determined that bans on use of mobile phones in the decrees violate article 36
of the Constitution where it is determined that “A person shall enjoy the
liberty to communicate with one another by lawful means.” And it found
that the curfews and restrictions on gatherings of more than five migrants are
contrary to article 63 of the Constitution, which states: “A person shall
enjoy the liberty of peaceful and unarmed assembly.”[75]
However, the provincial governors and Ministry of Interior have so far ignored
the NHRC’s ruling, which the NHRC lacks the legal authority to enforce.

III. Human Rights Abuses against Migrants

If
you pay money [to the police], you can do anything in our region. If you want,
you can kill people ... I have seen dead bodies many times by the side of the
road ... Our area is like a fighting zone ... when the police hear the sounds
of gunshots, they will not come ... [later] the police will come ask what
happened, and write down the information and then they go away, and that is all
that happens.

Both documented and undocumented migrants in Thailand are vulnerable to arbitrary acts of violence, intimidation, and extortion from
state authorities including police, military, and immigration officers as well
as private individuals. These abuses include killings, beatings, sexual
harassment and rape, forced labor, abductions and other forms of arbitrary
detention, death threats and other forms of intimidation, and various types of
extortion and theft.

Killings, Torture, and Physical Abuses against
Migrants

When I saw this [killing], I felt that we Burmese people
always have to be humble and have to be afraid of the Thai police. I feel that
there is no security for our Burmese people [in Thailand] or for myself.[76]

—Su Su, Burmese
migrant worker, August 24, 2008, Ranong province

Migrant workers and their families in Thailand are at particular risk of human rights violations by members of the security forces. Because
of their precarious legal status, they also have far less effective avenues for
redress in the event of killings, torture, and other ill-treatment in custody,
or other abuses by the security forces. This fosters an environment of impunity
and fear that exacerbates the tenuous circumstances in which migrants live.

In many cases, migrants have reported common crimes to the
authorities only to have the police fail to conduct a genuine investigation,
treat the matter with far less seriousness than they do comparable crimes
committed against Thai nationals, or simply refuse to arrest alleged
perpetrators despite detailed information from eyewitnesses. In other cases,
migrants express grave fears that if they report a crime to the police,
particularly when the police are involved, they themselves may be subject to
retaliatory violence.

Killings by Security Forces

Su Su told Human Rights Watch that she witnessed the beating
death of a Burmese migrant worker from Rangoon whom she estimated to be only 16
or 17 years old. She said he had traveled to the Thai port of Ranong to work on a fishing boat during a school break in order to earn his school fees. She
told Human Rights Watch what happened near her home in early 2007:

He was coming out of the shop. There were two police
officers on a motorcycle who stopped him and asked him if he had a work permit.
But he could not speak Thai and so he did not reply....Those two police started
to beat him and they kicked him in the chest until he died there. Many Burmese
were watching and nobody went and helped because all of the people were afraid
of those police, so nobody said anything about this killing, and nobody
informed the police station. When the two police saw that the boy died, they
went away on their motorcycle. I saw the next morning that the rescue
foundation came and took the boy’s dead body and no police officer was
with them ... I really wanted to help but I am afraid of those police.[77]

While violence against migrants is most prevalent among
local police, a wide variety of police and paramilitary forces operate in Thailand, especially in the border areas. Often migrants cannot differentiate between them.

Maung Cho, a supervisor at a textile factory in Mae Sot
close to the Thaungyinn River bordering Burma, told Human Rights Watch that
“soldiers” were involved in the drowning death of his friend and
co-worker, Ye Htun, on August 21, 2008. It is not clear whether these were Thai
Army soldiers or members of another armed force under the Thai government but
it is clear that they were present to try to break up a migrant worker rally.

As Maung Cho described the situation, a labor dispute had escalated
when a factory manager called in soldiers from a nearby village checkpoint to
deal with striking workers. The soldiers arrived armed with a shotgun and
pistols. The workers outside the factory immediately fled, and soldiers fired
in the air and yelled for them to stop—which produced the exact opposite
effect. Many of the workers panicked and jumped into the swift-running Thaungyinn River to escape by swimming across the river to Burma. Maung Cho, who swam across
the river, described Ye Htun’s death by drowning:

I turned around and could see Ye Htun struggling and he was
trying to keep his face above the water ... He was maybe about 20 meters from
the Thai side. There were about 10 workers who were already on the other river
bank with me but we did not dare to go back and rescue him because the Thai
soldiers were standing on the bank, looking at us, and pointing their guns at
us. They were also walking back and forth on the riverbank near where Ye Htun
was swimming and they pointed their guns at him. I could not hear what they
were saying to him, but they were saying something—but it looked to me
like they did not want him to come back to the Thai side.... Some of the
workers who did not cross the river told me later that when Ye Htun’s
head was going under water, one of the Thai soldiers said “Give him the
bamboo,” meaning to use a piece of bamboo to help him. But the Thai
soldiers did not help and by that time, Ye Htun’s head had gone
underwater.

Torture and Ill-Treatment by Thai Authorities

Police torture of suspects in pre-trial detention in Thailand is well documented.[79]
Migrant workers detained at police stations report similar practices, including
frequent beatings and other forms of ill-treatment during pre-trial detention. The
police use violence against detained migrants when they seek a confession of
guilt or other information from a suspect or as a form of punishment, such as
if a detainee looks directly at a police officer or fails to speak or
comprehend Thai.

Sai Tao, from Burma, told Human Rights Watch that officers
at the Saraphee district police station in Chiang Mai severely beat his brother
Sai Aye after arresting him in December 2007 on suspicion of theft. A police
officer called Sai Tao and told him to come to the police station to meet his
brother. When Sai Tao arrived, the police immediately arrested and searched
him, and confiscated his motorcycle.

During the initial questioning by police, Sai Tao said he
stood close to his brother and was able to speak to him. His brother denied any
involvement in theft and said the visible bruise behind his ear was from a
beating inflicted by the police at the station. The police then took them both
on a search of his brother’s room, but turned up no evidence of larceny.[80]
Soon thereafter, Sai Tao was released, but his brother was held for further
investigation. Sai Tao requested that the police call him when his brother was
released so that he could pick him up.

Around 4 p.m. the next day, Sai Tao received a phone call
from the police station saying they released his brother the previous night, but
that he then stole something else, and while he was being chased, he fell off
an apartment building. Sai Tao’s desperate search of hospitals led him to
his brother at Maharaj Nakorn Hospital in the Suan Dok area. He was suffering severe
head trauma and was unable to speak. His injuries required two operations and
over 50 days of hospitalization. To this day Sao Tao’s brother remains
severely disabled, unable to speak or walk by himself. Sai Tao believes the
police were directly responsible:

I am sure that the police physically beat and abused my
brother and made up the story of the apartment. I told them to call me if they
released my brother and it makes no sense that they released him that same
night after me.... My brother has never been involved in any criminal activity....
The story they told is just a lie, a cover story for what they did to my
brother... I would like to take a case against the police, to hold them
responsible....[81]

Aung Aung, a registered Burmese migrant worker, was
traveling by train from Chiang Mai to Bangkok on the evening of August 2, 2009,
when a railway policeman inspected his ID card and forced him to get off the
train at the Lamphun province train station. When Aung Aung protested that his
card was in order with the correct authorization and signatures, the railway
policeman punched him in the face, and then repeatedly kicked Aung Aung until
he collapsed on the ground.[82]
The railway policeman and a colleague took Aung Aung back to the Chiang Mai
railway police station, searched him, then “fined” him 1200 baht. On
August 4, with support from MAP, Aung Aung filed a complaint against the police
with the Chiang Mai provincial governor’s office. Since the case was
filed, Aung Aung learned from neighbors in his old neighborhood in Sankampaeng
district that the railway police have searched for him multiple times. Aung
Aung now fears for his life and his case was taken up by the National Human
Rights Commission of Thailand.[83]

Migrant workers who attempt to flee arrest are often beaten
by the police. On August 5, 2008, Border Patrol Police (BPP) arrested Maung
Kyi, an undocumented Burmese day laborer in Mae Sot, close to the village where
he worked. According to Maung Kyi, he then jumped off the moving BPP pickup
truck in an attempt to escape. Four BPP officers chased and caught him,
repeatedly kicked him, and beat him severely on his legs with their batons. They
dragged him back to the truck and another BPP officer kicked him in the chest, making
it hard, Maung Kyi said, for him to breathe. The BPP released him part way
between Mae Sot and his village, but he could not work for days because of his
injuries. Twenty days later he still had bruises and scars from the beating he
suffered.[84]

Oem Borey, a fisherman from Cambodia, told Human Rights
Watch how his physical altercation with a Thai fishing boat captain resulted in
his being further severely ill-treated by Thai police. Oem Borey described a
fight that he had on board a boat in the Gulf of Thailand off the coast of Trad province on August 25, 2008. He says the captain accused him of disobedience, hit him
with a metal pipe, and, when he fought back, the captain radioed other boat
captains for assistance, who then arrived and beat him severely. When the boat
returned to dock at Klong Makam
in Trad province, the captain called the police and told them Oem Borey was
drunk and had tried to steal the boat. Police from the nearby Klong Yai
district station arrived, and Oem Borey says police beat him at the pier at
least four more times on the back using their wooden batons until he lost
consciousness.[85]

Oem Borey suffered a deep gash on the head, a broken nose,
possible broken ribs, and other injuries, but he said the Klong Yai police
refused to send him to the hospital. Instead, they held him without medical
treatment in the police station lock-up for 13 days.[86]
Oem Borey reported that during his detention, the police interrogated him once
and accused him of attempting to steal the fishing boat. He said he was too
scared to respond so he said nothing. The following day, the police forced him
to fingerprint a Thai language document that he could not read. He received no explanation
from the police about the content or purpose of the document. His sister
negotiated a 2000 baht payment to the police for his release, plus an
additional 300 baht to compensate the police for agreeing to help him find a
new job.

Thailand’s ratification of the Convention against
Torture in October 2007 has not resulted in more energetic efforts to combat
torture and ill-treatment or to revise Thailand’s laws to conform to the
requirements of the treaty. [87]
And although the Thai Constitution of 2007 prohibits torture,[88]
Thailand lacks a specific law on torture, which complicates efforts by migrants
(and advocates for migrants) who undertake to raise a complaint of torture
against a government official.[89]

Police Abuses: An Insider’s Account

Saw Htoo is an ethnic Karen migrant worker who worked
closely for some 10 years as a member of a gang led by a police sergeant[90]
in the area of Kilometer 48 village in Pop Phra district, Mae Sot province. Originally
self-employed, Saw Htoo became vulnerable when police confiscated his
legitimate passport in 2003, claiming it was fake. With no documentation, and
as his overseas business partners had left the area, he progressively fell into
working for the police sergeant. His duties as a gang member included providing
information, collecting money from enterprises for the gang leader, and acting
on the orders of the sergeant, who employs gang members to intimidate and
extort migrant workers. In exchange, senior gang members like Saw Htoo had the
opportunity to run profitable enterprises—in
his case, operating an illegal lottery and managing the beer and wine shop at the
sergeant’s compound and snooker hall—and
receiving a percentage of the proceeds. Gang members frequently serve as
intermediaries between migrants and police, negotiating payments for release of
migrants from detention.

Saw Htoo performed all these functions and more. By his own
admission, he physically beat migrants, served as a middleman for police to
extort money from migrant families, and joined raids to detain migrant workers
who were then brought to the police sergeant’s compound for
interrogation. While he claims not to have killed anyone or witnessed any killings,
he believes that they occur.

Gang membership offers police protection for some migrants and
their families, power within the migrant community, and impunity for illegal
acts and abuses. Saw Htoo said:

Many migrants in this area want to become [sergeant’s
name withheld] luk nong [follower or employee] because this would make
them free from being arrested because he will protect them. Also, when there
are fights between the migrants, it is the police luk nong that have the
upper hand and everyone is scared of them.[91]

However, with membership come dangers if a migrant gang
member knows too much about his boss’ business, or if he crosses the
boss. In May 2009, the police sergeant repeatedly beat Saw Htoo in different
public locations in the Kilometer 48 area and conducted a mock execution.[92]
Saw Htoo is now in hiding on the Thai-Burma border.

As a gang member, Saw Htoo said he saw and in some cases
participated in police abuses against migrants, including beatings and torture
while in detention, rape, sexual harassment, forced labor, and systematic
looting of migrant workers’ money and valuables.

Saw Htoo said that the police in the area physically abused
migrants on a regular basis. Interrogations at the house of the police sergeant
heading the gang and the police post at 48 Kilometer village routinely included
slapping, punching, and kicking the suspects. Saw Htoo said:

I saw it so many times when the migrants were arrested,
they would be beaten by the police at the police station. Usually the arrested
migrants didn’t understand what the policeman was saying because they did
not speak good Thai—and so the policeman would kick the migrants.... I
saw often the police use their hands to slap the faces of the migrants.... If
any migrant looks up at the police while they are being beaten, that’s it—they
will definitely be hit again.

The area is also a major transit
route for workers moving from Burma into Thailand. Saw Htoo said that the
police sergeant and his gang members detained and beat migrants and their
guides who allegedly had not paid police bribes to transit the area. Beatings
of migrants occurred at the sergeant’s compound[93]
every two or three days. Saw Htoo recounted the severe beating that he, the
sergeant, and two other gang members inflicted on three migrant workers in
April 2009.

Saw Htoo believes the primary reason for these beatings is
to force migrants to pay money to gain their release, “Really, he [the
police sergeant] is just interested in extorting money from the migrants and he
knows he can do this by catching them and beating them.”

Saw Htoo said he regularly saw migrant women coerced to
sleep with police officers outside the station in exchange for their freedom,
and spoke to women who had been raped in 48 kilometer police post. He stated
that “If there is a young, good-looking woman, especially if the police
think that she might be a virgin, she will be taken to sleep with the
police.” Over the course of 10 years working with police at Kilometer 48,
he said he knew of more than 20 instances during which migrant women were raped
by police in a back room in the police post. He said, “I am the one who
the relatives will send with the money to get the woman out of jail.... After
they are released, those women are crying and telling me the story of what
happened to them. Usually, the girls will be raped in the police station. In the
48 Kilometer police station, there is a small, narrow room with a bed that is
used for this. They are just taking the girls out of the lock-up, and raping
them in that room.”

Saw Htoo said that often the women are released after the police
rape them, but in other instances, the policeman will pressure the woman to
become his mistress.

Saw Htoo said police regularly steal valuables from migrant
workers if they find them, and extort money from migrants and their families to
release arrested migrants. He said, “I have seen police take money, and
they also like to steal gold necklaces and other gold jewelry.... If a migrant
worker does not have a migrant worker ID, the police will sometimes take that
person’s mobile phone too.” Saw Htoo said he played the role of an
intermediary between police and the families of arrested migrants. Police
compelled migrants to call their relatives or friends to bring money for their
release, and the families used Saw Htoo to serve as a negotiator because they were
too afraid to talk directly with the police. He said:

At the police station, the police demand 3000, 4000, or
even 5000 baht from each of the migrants.... If police ask for 3000 baht and
the family of the migrant cannot afford that, they might propose to pay 2000 baht
instead, and I have to help with this bargaining. If the money is paid, then
the migrant will be let go.

Saw Htoo also described the use of forced labor over the
course of approximately 20 days in March 2009. Each day the police sergeant arbitrarily
apprehended Burmese migrants and forced them to dig a fish pond in his
compound. Saw Htoo witnessed the sergeant accosting three migrants walking past
the compound on their way to market, threatening them, and forcing a man to
work for the day. He said the sergeant told the man’s wife, “You
can go now and do what you want, come back at 5 p.m. and I will release him
then.” He did not pay the man for his day’s work.

Saw Htoo’s detailed accounts shed light from an
“insider’s” perspective on what migrant workers from Burma, Cambodia, and Laos have told Human Rights Watch about abusive treatment they receive from
corrupt police in places in other areas of Thailand, and the impunity with
which police are able to take advantage of migrants.[94]

Failure to Investigate Crimes against Migrants

The Thai police often fail to actively investigate ordinary
crimes as well as human rights violations by the authorities against migrants. Migrants’
lack of trust in police is underscored by the frequent number of instances in
which Thai’s who have committed beatings or other physical abuses against
migrants have then called the police to arrest and detain the migrant.

This was evident in the case of Aye Aye Ma, a registered
migrant worker from Burma, and her husband, Cho, in Phang Nga. According to Aye
Aye Ma, around 3 a.m. on November 5, 2007, two men armed with hunting rifles,
wearing masks and head flashlights[95]
appeared where they were working in a rubber plantation and demanded money. Aye
Aye Ma told Human Rights Watch:

My husband looked at me. Then that man who was talking shot
my husband in the head, and I saw him fall ... I couldn’t believe it, I
was shocked.... I started crying and yelled to my husband but I was also so
afraid that I could not run to my husband ... And then those two men came over
and grabbed me, and they ripped off my clothes. I think that they killed my
husband because they wanted to rape me ... I kept yelling “Please
don’t kill me! Please don’t kill me!” ... The whole rape took
maybe 10 minutes, one raped me and then the other raped me. When they were
finished raping me, they just walked away like nothing happened. They also
stole our head flashlights and the rubber tree tapping knives from me and my
husband.[96]

After the assailants left, Aye Aye Ma called friends for
assistance, and they in turn contacted the Thai Muang district police and the
Migrant Assistance Program (MAP). The police came to the crime scene, took
photographs, and collected two used condoms with semen inside as evidence, and
later interviewed Aye Aye Ma at the police station. A commanding officer, police
Lt. Col. Kittichet Kittiratanasombat, ordered in the investigation report dated
November 9, 2007, that a DNA test should be performed on the semen,[97]
in line with standard police procedure that such tests should be done within
three days of the collection of the evidence. But when MAP staff later went to
inquire about the test, officers at the police station said the test had not
been carried out because of budgetary constraints.[98]
No results of any DNA test were ever shared by the police, who later admitted
to MAP that one division in the police ordered the DNA test but then never
provided any further information about the test to the police actually in
charge of the investigation. At an interview at Thai Muang district two weeks after
the crime, police showed two grainy photocopies of photographs in a police file
to Aye Aye Ma, but she could not identify them because the men had worn masks
and it was dark. As a result, the police investigators told MAP representatives
that after one year they decided to suspend the case until new evidence is
found.[99]

Besides the real possibility that police did not conduct a
DNA test as ordered by their superior officer, Thai Muang police apparently did
not pursue a suspect whose name and address were in the police report as one of
the probable perpetrators.[100]
Aye Aye Ma believes the police know who the perpetrators are because they may
be individuals who have been implicated in the area for serious crimes in the
past. For instance, her employer, a former sub-district chief, after hearing
Aye Aye Ma’s description of the assailants, told her that those
responsible could have been two men from a nearby village suspected in previous
similar offenses.

Said Aye Aye Ma:

If the police really want to arrest the men that did it
[murder], then they can do it. But they do not want to do it.... I am Burmese
and a migrant worker that is why the police don’t care about this case ...
I feel very bad about all of this, that the police have done nothing for me....
Really they know that I can’t do anything.... My husband and I are only
migrant workers and we have no rights here.[101]

Since the last interview with the police two weeks after the
murder and rape, police investigators have not contacted Aye Aye Ma or
representatives of MAP, who accompanied her to file her case and who she
designated as her official representatives. A follow-up letter from MAP to the
police commander of Thai Muang district station did not receive a reply.[102]

U Win, from Burma, told Human Rights Watch that he and his
co-workers witnessed the murder of his friend Thwar Sin in a vegetable field in
Donsak district, Surat Thani province, on December 11, 2007, and that the police
did not investigate the crime. For reasons they do not know (they were aware of
no prior provocation), their Thai employer’s nephew hit Thwar Sin in the
left shoulder and then in the head with a long-handled scythe. His fellow
workers rushed Thwar Sin to Donsak Hospital, and then Surat Thani Provincial Hospital, where he died of his injuries. While U Win and several migrant
workers were at the hospital, the local village headman and two policemen
arrived and informed them the employer’s nephew was under arrest. However,
on December 13, Thai villagers in the area told U Win that the police had released
the assailant without filing any charges. No police officer ever contacted U
Win or any of the other Burmese workers in the field who witnessed the attack,
or the family of Thwar Sin, to investigate the murder. U Win said that without
a sympathetic Thai to accompany them, they were too afraid to file a complaint
with the police. He and the other migrant workers hoped that their employer
would take responsibility, but the man did not take any action against his
nephew. No compensation was paid to Thwar Sin’s wife, who was living in Thailand and pregnant at the time, and caring for her four-year-old son. U Win said:

I have no experience in filing a complaint with the police and
I can face problems with the police if I do that. We are Burmese staying in Thailand. We should not go to the Thai police station—really, we do not believe that
they will do anything for us ... We, in our conscience, wanted Thai authorities
to take care of this case correctly. Though we come and work here as alien
workers, we want to be treated with equally and justice before law. This is
normal when Burmese workers are killed. The Thais never take any action and
most of the cases disappear like this.[103]

Myo Myo, a Burmese migrant, told Human Rights Watch that she
witnessed the killing of a newly arrived Burmese migrant worker in November 2007
by a Thai shop owner in Paknam sub-district in the Muang district of Ranong. She
saw a dispute erupt between the shop owner and the Burmese man. The shop owner
hit the Burmese man with a large piece of wood on his back and head, and he collapsed
and died. His body lay on the ground for several hours until one of the Thai
rescue foundations[104]
retrieved the corpse. Myo Myo said that the police never came to investigate
the killing. No one in the Burmese community reported the incident to the
police because they were worried about having problems with the shop owner, who
she believes has influence with the local police. She told Human Rights Watch:

Many Burmese saw this incident but nobody dared to say
anything ... or inform the police. All of the Burmese people are afraid of him
[the shop owner]. Sometimes I see the police come and talk to him and visit
him, so I think he might work together with police. I have seen the police eat
with him several times, and sometimes they drink beer in his shop. Sometimes
there are two or three police who come and drink with him and their police car
is parked right out front.[105]

Van Bourey, a Cambodian in Trad, told Human Rights Watch
that on September 13, 2008, after he had a dispute with another Cambodian
migrant, two local Thai motorcycle-taxi drivers who he knew by their nicknames
severely beat him. One accosted and struck him four times with a heavy piece of
wood, causing severe injuries to his left arm, side, and head. This assailant
then left the scene, leaving the second man to guard the injured Van Bourey
until police from the local Klong Jak police post arrived, which was
approximately 15 minutes later. The attack took place in front of numerous people
at Van Bourey’s dormitory, but Van Bourey did not see the police question
any potential eyewitnesses, even after he immediately told the police the assailant’s
name. Van Bourey said that instead the police handcuffed him behind his back,
causing excruciating pain in his injured arm, and took him to the Klong Yai district
hospital. The doctor’s examination found he had suffered a bruised skull.
The next day, doctors agreed to release him and he left before the police
returned. Inquiries to Klong Jak police by a local NGO found that the police
intended to arrest Van Bourey on an immigration offense following his release
from the hospital.[106]

Van Bourey told Human Rights Watch why he did not file a
case against the assailant:

Even though I think that I could win the case, I am not
brave enough to raise a complaint against [name withheld] because I am scared
to have a problem with him. He knows a lot of people, including police, and I
am worried that if I have a problem with him he could accuse me of doing
something else, and I could be arrested at any time because I do not have an ID
card.... They could accuse me of whatever else they wanted and I could not
defend myself...

Most of the time when Thais beat Cambodians the Thais will
later call the Thai police to arrest us. The Thais know that most Cambodians
here do not have migrant ID cards and they also know that we will not be brave
enough to call the Thai police to catch them for beating us ... So it is like the
Thais can beat us for free.[107]

This broader impunity for mistreatment of migrants manifests
itself in physical abuse by Thais in connection with workplace disputes. Invariably
the migrant workers are reluctant to bring such abuse to the attention of the
authorities for fear of further mistreatment.

U Ko Nai, an experienced Burmese construction supervisor and
leader of Burmese workers, told Human Rights Watch that a Thai supervisor beat
him so severely on April 4, 2008, that he lost consciousness.[108]
Ko Shwe, a Burmese migrant worker, said that on August 26, 2008, at the food
and drink shop where he worked in Surat Thani, a Thai worker punched him three
times in the face, then knocked him to the floor and choked him. But when Ko
Shwe went to the Muang district police station, he was met with indifference by
police investigators. After checking Ko Shwe’s migrant ID card, the
policeman told him that he “must bring the Thai man who beat you to the
police station, or you need to bring his ID, or his photo to the police
station.”[109]
Ko Shwe told Human Rights Watch:

How can I take a Thai to the police station? It is
impossible. The policeman just listened to me, he did not write anything down. I
think that the police did not want to take any sort of serious action in my
case.... I have the ID issued by the Thai government, but it is worthless—we
[migrants] are afraid of everybody.[110]

Common criminals frequently target migrant workers for
robbery and other offenses because it is common knowledge that migrants are
less likely to approach police to file criminal complaints and insist on an
effective police investigation. Hun Pee, a Cambodian food vendor in Muang
district, Rayong, recalled the early morning attack she faced in July 2007. Her
assailants stole 8000 baht and her gold ring before racing away on their
motorcycle. Despite being in Thailand legally, she said she did not dare file a
complaint with the police because of her concerns about the criminals, who
might retaliate against her, and the police, whom she did not trust either to
protect her or apprehend those responsible.[111]

Under international law, states have a positive obligation
to prevent, investigate, and appropriately prosecute violations of human rights
by state authorities and their agents, but also acts by private individuals
harming the rights of others. According to the UN Human Rights Committee, the
expert body that monitors compliance with the ICCPR, states must ensure that:

Individuals are protected by the State, not just against
violations of Covenant rights by its agents, but also against acts committed by
private persons or entities that would impair the enjoyment of Covenant rights
in so far as they are amenable to application between private persons or
entities. There may be circumstances in which a failure to ensure Covenant
rights ... would give rise to violations by States Parties of those rights, as
a result of States Parties’ permitting or failing to take appropriate
measures or to exercise due diligence to prevent, punish, investigate or redress
the harm caused by such acts by private persons or entities. ... [For example]
States Parties have to take positive measures to ensure that private persons or
entities do not inflict torture or cruel, inhuman or degrading treatment or
punishment on others within their power.[112]

IV. Forced Labor and Human Trafficking

All
the other girls were crying all the time but I just kept quiet because I
thought to myself that if I cry they can kill me and if I don’t cry they
can also kill me, so why should I cry? So I just prepared my heart to face
whatever was going to happen, because I did not want to cry. I thought I was
going to die.[113]

—Bee Komjamwong, migrant worker from Laos who was trafficked into sex work.[114]

Undocumented migrant workers are also highly vulnerable to
deception by labor brokers, typically from their own countries, who deliver
them into the hands of Thai employers who then compel them to work at jobs through
use of threats, force, and physical confinement. Human Rights Watch found
workers who were forced to work in factories, commercial sex establishments,
fishing boats, and domestic service. Some were compelled to labor on community
projects or held for ransom on the Thai-Malaysia border. Forced labor and
trafficking[115]
violate Thai national law[116]
and the Thai government’s commitments under various ILO and other human
rights treaties.[117]

Forced labor of migrant workers in Thailand has been broadly reported. The US State Department noted in its 2008 human rights country report
on Thailand that “there continued to be reports of sweatshops or abusive
treatment in livestock farms, seagoing trawlers, animal feed factories, and
seafood processing factories in which employers prevented workers, primarily
foreign migrants, from leaving the premises.” The ILO has reported that
forced labor occurs in maritime fishing, seafood processing, and other light
manufacturing, low-end garment production, agriculture, and domestic work.[118]
Thai government officials, accompanied by NGO staffers, led a raid on March 10,
2008, on the Anoma seafood factory in Mahachai district of Samut Sakhon. A
total of 72 undocumented migrant workers were freed from forced labor,
including 20 children and 10 adults identified as trafficking victims.[119]

These workers often move from their countries of origin to
workplaces in Thailand in travel arranged by networks of Thai and migrant
brokers. Many workers are unable to pay the costs in advance. With varying
degrees of knowledge about the terms and conditions of the arrangement,
migrants frequently enter into debt repayment arrangements where the costs of
movement and job placement are deducted from migrant workers’ future pay.
However, brokers usually immediately recover these costs from the workplace,
leaving the employer as the collector of the migrants’ debt. Employers’
interest in recovering these recruitment costs through pay deductions often
leads them to exert unreasonable controls over their migrant employees,
including withheld wages and restrictions on movement. In some cases they may
charge extra pay deductions for food, accommodation, or spurious penalties,
leaving migrants in situations where they cannot repay the escalating debt. In
the worst cases, migrants become trapped in situations of debt bondage, other
forms of forced labor, and human trafficking.[120]

Undocumented migrants are particularly vulnerable to
trafficking due to unregistered, unscrupulous brokers, lack of valid travel
documents, fear of authorities, and limited information about their rights and
how to get help. The case of 16-year-old Bee Komjamwong from Pakse, Laos, is commonplace. She told Human Rights Watch she had just finished 10th
grade when she was offered work selling food in Samut Prakan by a broker from Bangkok who was visiting her village. In late May 2008 she arrived at Mor Chit bus station
in Bangkok, but the broker failed to appear. Bee believes the broker likely set
her up, because a man singled her out and approached her, duped her into a van
offering a free ride, and held her at gunpoint with eight other Burmese and Lao
women. The two men holding them repeatedly slapped and kicked the women to
intimidate them and keep them quiet. The van drove the entire day without being
stopped at any checkpoints. The traffickers refused to feed the women, yelling
at them “Why do you need to eat? It will make you less beautiful!” Hungry,
fearful, and disoriented, Bee and the others could not discern where they were
when the van stopped in the early evening. The men herded them onto a waiting
boat; the overnight voyage ended on an island where Bee said she thought she
was no longer in Thailand because none of the road signs were in Thai. The traffickers locked them in a room and continued to deny them food. The next day,
they were delivered to a karaoke bar where the owner immediately took Bee to a
room and raped her. She told Human Rights Watch, “All of the girls had to
sleep with the customers, no one had a choice—there were so many
customers, and we had to sleep with them any time of day or night.”

After a week, on a particularly quiet night with few
customers, she said she and another Lao woman were able to flee, running into
the jungle and moving constantly to evade any pursuers. Finally, they reached a
flower farm run by an elderly couple who spoke southern Thai dialect. The
couple regularly sent deliveries of flowers to Lat Prao, Bangkok, and several
days later transported the two women back to Thailand, allowing Bee to
successfully reunite with her mother working in Samut Prakan. Bee says her
mother had filed a case with local police at Samrong sub-district in the Muang
district of Samut Prakan province, when her daughter disappeared. She said that
the police claimed they conducted an investigation into the gang at Mor Chit,
but did not find anything.[121]

Migrant children even younger than Bee are also vulnerable.
Three Lao girls aged 10, 11, and 15 from related families in Ban Pak Huay Der, located
in Laos across the Mekong River from Ubon Ratchathani province, and were
promised 1500-baht-per-month jobs as domestic workers in Thailand’s Rayong province. The offer came from a Thai woman named Ouan working in rubber
plantations who knew a woman from the girls’ village. The girls went with
the agreement of their parents, but as soon as they arrived in late April 2007
at Jae Hoong’s[122]
isolated house in Rayong province, they learned Ouan had sold them for 10,500
baht to Jae Hoong. The youngest girl, who we call Sai Wan, said that within
three days, Jae Hoong sold her to another house owner, Jae Ku, who took her
away to her house. Meanwhile, Jae Hoong brought brokers to the house to
consider the eldest, whom we will call Dakkadan, and the middle child, whom we
will call Lamyai. The first, a male broker, looked over the two and told Jae
Hoong “those girls are too young still, wait for them to grow a bit
more.” Next a woman broker came and Jae Hoong was prepared to sell them,
but the girls resisted. Dakkadan explained: “We would not go.... and so
they hit us on the back, our legs and our arms. We did not know who this woman
was and what sort of work she would take us to do.... and we did not want to be
split up.... They tried to pull us to make us go.... they hit us, and we cried
and cried—but we still refused to go—so finally they left
us.” Jae Hoong promised to send money to the parents of the two girls for
their work, but according to the girls’ parents, no money was ever sent.

According to the girls, members of Jae Hoong’s family
hit Dakkadan and Lamyai daily. The only thing that prevented Dakkadan and
Lamyai from running away was their fear they would lose Sai Wan forever because
they did not know where she had been taken or how to contact her. The two girls
said that they surreptitiously called their parents who launched an effort to
get their children back, but they had to pay Jae Hoong 10,500 baht per child, a
relative fortune for poor Lao villagers, before the three girls were allowed to
return home. [123]

Ko Oo, a migrant worker from Burma, told Human Rights Watch
how a migrant labor broker passed him at the Thai-Burma border to an armed man
who claimed to be a Thai policeman. Ko Oo said the Thai man drove him five
hours to the Gulf of Thailand and delivered him to a fishing boat. When Ko Oo
protested because he received no pay for the first two months of work, he
learned from the crew chief that he had been sold to the fishing boat and would
have to work without pay for at least another five to six months. He said,
“I felt very sad when I heard that—I came to Thailand to make money but now I was working as a slave laborer.” He started planning to flee,
and spoke with the other 12 fishermen on board, but they were too afraid to
join him. Ko Oo said he escaped on the night of August 22, 2008, by slipping
overboard and swimming ashore while the captain slept. He said he walked through
the night to reach Surat Thani town, where he received assistance from the
Burmese migrant community. Reflecting on his experience, he said “We want
fair wages and to be treated as human beings. Though we work very hard at our
workplace, we get nothing, so our lives are like as slaves.... That means that
our lives are good for nothing.”[124]

Kam Noi, an ethnic minority man from southern Laos, told Human Rights Watch that a labor broker in Laos approached him in 2007 and promised him
work on a farm in Thailand. But instead the broker sent Kam Noi on a truck
whose driver delivered him into forced labor on a small fishing boat in
Prachuab Khiri Khan operating in the Gulf of Thailand. Kam Noi had never been
at sea and could not swim, and lacked any experience with heavy fishing work. The
fishing boat owner never paid him for the work he did. Kam Noi told Human
Rights Watch, “It was really hard work and I was worried that I could not
continue to do it, and that I will not survive. I was scared about so many things.
I was scared of the sea because I cannot swim ... I was scared the boat would
sink or that there would be a problem.” When he snuck away from the boat
in Pranburi port in Prachuab Khiri Khan province, one of the relatives of the
boat owner caught him. He said that she yelled at him for not paying back the
money for the trip to Thailand: “She threatened me, and told me that if I
try to run away again, she will call the police.” Several hours later,
Kam Noi ran away again, this time successfully.[125]
While returning to the Thai-Lao border in Ubon Ratchathani, Kam Noi said he
escaped an attempt to abduct him at Hua Lamphong train station by a taxi cab
driver who he believes would have sold him to human traffickers.[126]

Aye Maung, a migrant worker from Burma, told Human Rights
Watch that he was compelled to transfer money in April 2008 to a human
trafficking gang at the Thai-Malaysia border holding his two cousins after they
were deported from Malaysia to Thailand. He said his cousins called using the
traffickers’ phone. He said, “They said to me you can only talk to
us about money. Will you pay or will you not? If you talk about other things,
we will be beaten.” He added that “If I didn’t send the
money, I think that they would have been beaten, and then sent on a fishing
boat to Indonesia.”[127]
Aye Maung borrowed funds from friends in order to raise the money within two
days and meet the traffickers’ deadline. For each of his cousins, he
transferred 18,000 baht to the traffickers’ bank account, and when they
received the money the traffickers transported his cousins to Mahachai and
released them.[128]

In some instances, migrants said that government officials
seized or otherwise took control of migrants and forced them to perform labor
with the threat of physical harm or other retaliatory actions if they refused. Soe
Myo told Human Rights Watch that he and fellow migrants were compelled by the
village chief in their village in Thai Muang district of Phang Nga province to
do unpaid, forced labor, including cleaning the village and roads and making
cement blocks. The assistant to the village chief supervised the work, and the
migrants were fearful of opposing the order. Soe Myo said “We never
refuse, we don’t know what will happen to us if we refuse, but I think
that he [the village chief] will threaten us or not allow us to stay and work
in his village.” Unregistered migrants had to report to the village chief
with their employers to fill out forms, which they needed to submit with two
photos and 300 baht. In April 2008, Soe Myo reported that the village chief
forced all the migrant workers to buy t-shirts from him at an exorbitant price
(250 baht), threatening that “for the ones who don’t buy my shirt I
will record it and I will not allow him or her to stay in my village ... and we
will ask the police to come arrest you all.”[129]

Article 38 of the Constitution of Thailand (2007) prohibits forced
labor. Forced labor is also prohibited under the ICCPR,[130]
the ICESCR,[131]
and the Convention on the Rights of the Child.[132]
Thailand has ratified ILO Convention No. 29 on Forced Labor and is obligated
“to suppress the use of forced or compulsory labour in all its forms
within the shortest possible period.”[133]
Thailand has also ratified ILO Convention No. 182, the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour.[134]
The Thai government signed, but has not yet ratified, the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children.[135]
With the passage of the Anti-Trafficking in Persons Act B.E. 2551 (2008), Thailand took an important step to brings its law and practices into compliance with UN
standards but weak enforcement of the law remains a major problem.[136]

V. Extortion of Migrants by Local Authorities

The
police will charge us whatever they can get or think they can get from us to be
released. It’s all about taking the money, they know that they can just
take from us and no one dares to complain—the migrants will just continue
to keep quiet as they steal everything from us.[137]

Systems of Extortion by Police and Local Officials

Accompanying the threats of violence and abuse, sexual
harassment of women, and extended detention and deportation, migrants often
face ruinous extortion of money and valuables, particularly by police. It is
not uncommon for a migrant to lose the equivalent of one to several
months’ pay in one extortion incident.

Extortion of money and valuables from migrants by police is
a widespread problem. Virtually all migrants held in police custody that Human
Rights Watch interviewed attested that police demanded money from them or their
relatives in exchange for their release. Migrants reported paying bribes
ranging from 200 to 8000 baht or more, depending on the area, the circumstances
of the arrest, and the attitudes of the police officers involved. For detained
migrants who do not possess enough money to be released, frequently the
arresting officers asked whether they had relatives or friends willing to pay
to secure their release.

Migrants indicate that an informal hierarchy of payments
exists. Release at the point of arrest requires less money, but if the police transfer
the migrant in custody to the police station, then the amount of the bribe
required for release rises. Kyaw Lwin, a long-time Burmese migrant worker in
Surat Thani, estimated that the cost of releasing a migrant ranges between 4000
to 5000 baht at the roadside, but if the migrant is taken to the police station,
the bribe expected for the person’s release rises to 8000 baht. He stated
that it is common in Surat Thani that arresting officers allow detained
migrants to use officers’ cell phones to call friends or relatives to
raise money for release.[138]

Undocumented migrant workers are the primary targets of
these abuses. But documented migrant workers also report being required to pay
either because their employer is holding the worker’s original
registration document or their official migrant worker ID card has not yet
arrived from the Ministry of Interior.

Workers with migrant worker ID cards said police give
different justifications for refusing their documents and demanding money.
Migrants said that frequently police allege that the documents are fake or that
the migrant is outside the permitted travel area. Sometimes, police refuse to
accept a photocopy of a document provided to the worker by the employer who is
retaining the original document. In some instances, no reason is offered by the
police—they simply force migrant workers to turn out their pockets, and
seize whatever they wish. Virtually every migrant interviewed by Human Rights
Watch, both documented and undocumented, reported that police regularly steal
money, gold chains and jewelry, mobile phones, and other valuables from them in
the course of routine stops and checks.

In Mae Sot district, Tak province, migrant workers with ID
cards traveling with other migrants who are undocumented face arrest simply
because they are found in proximity with undocumented migrants.[139]
The Mae Sot police’s rationale is that the documented migrants are
“traffickers” promoting illegal migration in violation of article
64 of the Immigration Act of 2522.[140]
According to the YCOWA, bribes demanded by Mae Sot police to release a migrant
so charged are significantly higher than normal levels.[141]

Even migrants who legally enter Thailand are susceptible to
extortion by police in Mae Sot. On February 9, 2009, nine migrant workers
entered Thailand with legally issued Burmese government border passes and were
admitted by Thai Immigration at the Mae Sot-Myawaddy Friendship Bridge. The workers had previously worked for a small apparel factory in Mae Sot. They had returned
to Burma temporarily, and were back in Thailand to go to the YCOWA office to
file a complaint against their employer for non-payment of wages. On the way,
two police on a motorcycle stopped the migrants near the Mae Sot central fresh food
market and took them to a nearby police holding cell. The police accused one of
the women of being a “trafficker,” arranging transport of migrants
to Bangkok. Finally, the police forced the group to pay a total of 8000 baht in
exchange for their freedom. Following their release, the police continued to
follow the group when they went to YCOWA, and asked YCOWA staff about the
group, what they were doing, and where they were staying in Mae Sot.[142]

Roadside Arrest and Extortion

Saw Htoo, the migrant worker from Burma profiled above who
collaborated with police, described how police seize migrants’ motorcycles
in the 48 Kilometer area in Tak province, saying police claim the migrant is
driving without a license or is not allowed to drive there. Police take the
motorcycle to the police station and it must be ransomed back at a heavy price.
Saw Htoo noted that payments could be as much as 7000 baht to secure the return
of a motorcycle valued at 10,000 baht, or 50 percent of the value of a more
expensive motorcycle. He said, “Sometimes one police seizes the
motorcycle and the owner pays to get it back, and then soon after, another
police will come and confiscate the motorcycle again. It can be very expensive,
so many bribes to pay.” [143]

Khai Moe, Nang Mar, and Thi Myo, three Burmese women working
at the Thai Union Frozen Products factory in Mahachai district, Samut Sakhon, were
registered migrant workers whose original migrant registration documents were
held by their employer. In late November 2008, they were on their way to the
Talad Goong fresh market when they say they were stopped by two policemen, one
in uniform, sitting in a parked car. The policemen ordered them into the back
seat of the car, telling them the details of their migrant worker IDs must be
checked at the police station. The women say they saw the policemen’s
guns on the dashboard so they did not dare run away. When the car went past a
police station, and then did not stop at the police post at Khom Ku, the women
became very frightened. Khai Moe, who speaks some Thai, asked “Where are
you going? We passed the police station.” The police did not answer.

The policemen took them to a very isolated area near Ban Pla
and conducted an invasive body search. The police found and stole 5300 baht
from Nang Mar and Thi Myo, then left them in front of an abandoned factory. The
women said they were too scared to file a complaint with the Thai authorities
themselves.[144]

Ma Myo, a migrant worker from Burma, said she was stopped,
harassed, and extorted by police several times over the course of a year in Mae
Sot despite having a migrant worker ID. Since her employer held the original ID
card and only provided a photocopy for her use, police claimed each time that
her ID was fake, she said. The first time, in February 2007, the police seized
500 baht from her wallet. Ma Myo said:

Normally, I don’t yell, I try to speak gently and wai
[traditional Thai cultural greeting] when talking with the Thais, but I was so
angry.... But there was nothing I could do, and if I said anything more it
could just get worse for me.... I felt very disappointed and angry because I
have paid a lot of money for the migrant ID but the police still take money
from me.

In April 2008, she said she was stopped on her bicycle and
detained at a police checkpoint for more than three hours. The police refused
to let her call her employer to verify her legal registration status, and when
she protested, she was verbally threatened by the Burmese police interpreter.[145]

Police extortion occurs even during emergency situations,
when migrants are seeking medical assistance for themselves or their families. Police
at a roadblock near the Democratic Karen Buddhist Army (DKBA) 999 gate
prevented Mon Mon Shwe from Burma from taking her son, who was sick with a high
fever, to the Mae Tao Clinic[146]
on August 22, 2008. When she produced her Mae Tao clinic card, she said, the
policeman threw it away, accused her of lying about her son’s illness,
and demanded a bribe to release her and her son. The policeman compelled Mon
Mon Shwe to hand over all the money she had (200 baht) and prevented her from
continuing her journey. She had to walk home, carrying her son on her back, she
said.[147]

Migrants are vulnerable to having their money and valuables
stolen by a diverse array of other armed Thai authorities, but often have
difficulty distinguishing the perpetrators. For example, in March 2008, two
armed men in camouflage uniforms stopped Burmese migrant worker Naing Ko and a
friend near the Mae Sot central market, and demanded to see their IDs. When
Naing Ko pulled out his wallet to show his ID card, he said, the men grabbed
his wallet and stole 300 baht, claimed the card was fake and searched the two
migrants, seizing his mobile phone. The only identification Naing Ko can assign
to the two men is “militia.”[148]

At Police Stations

Migrants caught up in police raids or more formal police
actions and sent to police posts or full district police stations face even
greater pressure to pay for their release. These arrests play out differently,
depending on the location, circumstances of the arrest, and disposition of the police.

Kyaw Oo, from Arakan state in Burma, said police arrested
him three different times in a two-month period in Mahachai district, Samut
Sakhon province. At the time, Kyaw Oo was recovering from a grievous work
accident that severed four fingers on his right hand. On his first arrest,
police handcuffed him, put him in a police car, and drove him around while
negotiating the amount he had to pay for his release, he said. During his
second arrest, in September 2008, the two officers handcuffed his still
bandaged hand behind his back and forced him to ride pillion on a motorcycle to
a local police outpost, causing him excruciating pain. He said, “When I
was arrested, I felt awful, I was hurting, I was fearful, and whatever money
and resources I had I would have to give to the police to get out.” A
month later, police officers arrested him at his room after considering and
rejecting his offered bribe of 2000 baht. At the police station he said he used
the last of his injury compensation payment from his employer to pay 3500 baht
for his release.[149]

The ability of police to extract money from migrants
apparently has few limits. Myo Lwin, an active member of a Burmese migrant
worker welfare group, assisted Ko Swe, an undocumented migrant worker from Burma arrested by two police on August 26, 2008, in downtown Surat Thani. According to Myo
Lwin, when police stopped Ko Swe, they searched him and confiscated 6000 baht
and his mobile phone, then demanded that he contact his brother to bring 6500
baht to the police station to secure his release. But after his brother came
and made the payment, the police presented an additional condition: a
replacement detainee must be located for Ko Swe or he could not go free. Ko
Swe’s brother finally found another policeman and paid him an additional
8500 baht to get Ko Swe out of jail—bringing the family’s total
losses for the day to 21,000 baht.[150]
Myo Lwin said that “If we don’t have a work permit, I admit that
the police have the right to arrest us—but they should not take our hand
phones, or our motorbikes, or money. They should operate under the law.”[151]

Local police in Ban Phe sub-district in the Muang district
of Rayong province arrested Mom Channary, from Cambodia, her husband, and her two
children as undocumented migrants in November 2008. She said, “I was so
scared because I knew that I did not have the money in my pocket to give to the
police.... I was worried that they would keep us in jail because I did not have
the money to pay the fine.”[152]
She told how in the police lock-up a policewoman told her to call someone who
could pay for her release and handed over her mobile phone to make the phone
call. The family had to borrow money to pay 2000 baht per person for their
release, a debt which took the family two months to earn back. She said,
“There was no sort of receipt from the police for this payment. I am not
sure where they money ended up but I think it was in the hands of the
police.”[153]

Police Protection Rackets and Payments

Throughout the country, migrant
workers told Human Rights Watch that Thai police are directly involved in
extorting money from employers of migrant workers on a monthly payment-per-head
basis at the workplace, and demanding money to release migrant workers they
have detained.

According
to Ma Myo, a Burmese supervisor who has worked in several textile factories in
Mae Sot district, Tak province:

I have seen the local police come many times to the
factories where I have worked ... [O]ften the police will go to the office.... to
ask whether the factories have hired any newcomers or not. If the factory pays
the bribe money to the police in advance, then the police will not go visit
those factories. But for the factories which have not paid the bribe money,
they will check and inspect and then they will negotiate in the office ... and
threaten to make arrests if a payment is not made.[154]

Usually local police demand a certain amount per month from
the factory or establishment for each undocumented migrant worker. In exchange
police agree not to raid the workplace and arrest the workers and to give
warning to the enterprise if local police learn in advance that authorities
from outside the area are coming to check the factory. However, these
arrangements do not typically provide any guarantees, and if police from
outside the area come without informing the local police, then the employers
are on their own. Ma Myo described the arrangements in Mae Sot:

I have seen them come and arrest undocumented workers at
the factory, and then negotiate the bribe with the manager.... [T]he factories
in Mae Sot have to pay 300 baht a month to the police per undocumented worker. But
for the really big factories, which have many workers, those factories only
have to pay 100 baht per worker.[155]

Aik Neng said he was working at a knitting factory in Nakhon
Pathom province when Om Noi district police raided the factory on August 25,
2008, seeking to arrest him and the other 300 or more undocumented Burmese
migrant workers he estimated were employed there. Most workers ran so only
three were arrested, he said. But following the raid, the manager told Aik Neng
and the others that the police came because protection fees were not paid to
them. The next day, the manager began deducting 500 baht per month from the pay
of each undocumented migrant worker.[156]

Ten Bangkok-based police officers arrested Pla Pasai along
with seven other Lao women without warning when they raided the Namthip karaoke
bar where she worked in remote Khemmarat district, on the Thai-Lao border in
Ubon Ratchathani province. She said that the owner of the karaoke bar has to
pay money to the police to be allowed to continue operating and added that
“if the Khemmarat police know that police from outside are coming, they
will inform us in advance.” She had to appear before the court in the
provincial capital and, after she paid a heavy fine, the police were supposed
to have deported her—instead, they released her and the other women. The
Khemmarat police picked up all the women in front of the court and then
transported them back to the karaoke shop in police vehicles. At times when
local Khemmarat police tipped off the karaoke owner that police from other
areas were coming, Pla and her co-workers were sent into the nearby jungle area
where they had to stay in tents for several days until the police left the
area, she said.[157]

For smaller worksites, migrant worker supervisors manage the
relationship between the undocumented workers and the local police. Zaw Zaw, a
Burmese construction supervisor leading a crew of 15 migrant workers in Surat
Thani, said he collects and delivers 500 baht per month to the police for each
undocumented migrant worker on his site. He said that “whenever a new
worker starts working, I have to take him and show [him] to the police. Then
the police ask for money and tell him [the new migrant] not to go
anywhere.” Zaw Zaw also serves as the point of contact for local police
calls. He said “If Bangkok police and Immigration officers will come to
arrest the illegal workers, the local police will inform me in advance. Then I
will call the workers and prepare the hiding place.”[158]

Police also compel employers to pay for the release of their
employees. When an undocumented migrant worker is arrested, migrant workers
told Human Rights Watch, the police first commonly demand to know the name of the
worker’s employer. Then the police call that employer to come and pay for
the worker’s release. Employers holding the original registration
documents of a migrant worker must go themselves or send a representative to
the police station to seek the release of their worker. Since the payment for
release of a worker can equal that worker’s monthly wages, employers have
a financial incentive to keep tight controls over the movements of migrant
employees.

Extortion by Police Impersonators

Migrant workers often have great difficulty differentiating
between real police and local persons impersonating police in order to extort
money from migrants. Police regulations do not require police, especially those
assigned to investigation duties, to wear their uniforms at all times. While
police have badges, those dressed in plain clothes do not display them and
migrant workers told Human Rights Watch police are reluctant to show them. Many
migrants are thus left guessing about the veracity of a person’s claims to
be police officer, and use clues like the types of shoes and attire worn by the
person, possession of weapons and walkie-talkies, and other visual and verbal
indicators.

Migrants’ fear of police is so pervasive that Thai
criminals have come to realize that impersonating police is lucrative and
relatively risk-free. Sixteen-year-old Lao migrant worker Pin Mukdahan said she
was accosted midday by a man on a motorcycle in June 2008 in downtown Chong
Mek, close to the Thai-Lao border in Ubon Ratchathani. The man pulled out a
machete and ordered her to get on his motorcycle. When she complied, he drove
to a remote area at the beginning of a smugglers’ trail across the
border. There he delivered her to another armed man in plainclothes who she
believes was a policeman, but she is still not completely sure. The man
demanded money and threatened to take her to the police station or deport her
if she did not pay. She said “I was shaking with fear. He was sitting on
the motorcycle and I was in a squat position ... and not brave enough to look
him in the face.” She said she finally paid 500 baht and was allowed to
leave. Since the second man might have been a policeman, she said she was
afraid to file a complaint.[159]

Sai Htoon said he and his wife, who are ethnic Shan from
Burma, were riding his motorcycle in April 2008 when two men claiming to be
police from the police station near the Chiang Mai airport stopped them. Sai
Htoon said he had a current work registration but his wife’s was in the
extension period and she had not received the official document yet—meaning
that she had no ID card on her person. The two Thais were not in uniform, but
one displayed what Sai Htoon believes was an Immigration Department card. The
men seized Sai Htoon’s motorcycle keys and mobile phone, and demanded
payment of 8000 baht (6000 baht for the motorcycle, 2000 baht for driving
without a license). When Sai Htoon protested that he did not have the money,
the men pulled guns on the migrants and took their two gold necklaces as a
deposit for the 8000 baht they insisted must be paid. They released Sai Htoon, his
wife, and their motorcycle and gave them a phone number to call when they
collected the money. But when Sai Htoon called an hour later, he said, the
number was unavailable and when he drove back to the site where the incident
took place, there was no one there.[160]

Two men accosted Aye Maung while he was riding his bicycle
in the Saphan Ta Chin area of Samut Sakhon province during the first week of
August 2008, blocking him with their motorcycle. Neither of the Thais wore a
uniform but Aye Maung said he thought one of the men looked like a policeman. When
they realized from his accent he was Burmese, one of the men demanded to see
his migrant ID card. When he pulled out his wallet, the man grabbed it, looked
for money, and then searched Aye Maung and stole his mobile phone. Aye Maung
said “When I thought they were police, I thought there would be no
trouble—but then when they grabbed me, I knew they were nak leng [thugs]
and I was afraid because they must have weapons too.” After taking his
phone, he said the men rode off on their motorcycle, which had no license plate.[161]

Extortion During Deportations at the Thai-Burma Border

Extortion of migrant workers by authorities also happens when
migrants are being deported. According to immigration officers in Ranong, the
government of Burma refuses to allow official deportations at the
Ranong-Kawthaung checkpoint, so many Burmese migrants are sent to the
Immigration Detention Center (IDC) in Bangkok and then to Mae Sot for
deportation. Yet the twice weekly schedule of official deportations from Mae
Sot to Myawaddy is insufficient to manage the numbers of deportees. Informal
systems have since developed between Thai officials and a border militia, the Democratic
Karen Buddhist Army (DKBA), which is allied with the Burmese Army, in which
migrants are sent by Thai Immigration Department trucks to the Tamahar checkpoint,
and deported across the Moei River to an area controlled by DKBA Battalion 999.
Human Rights Watch spoke to half a dozen migrant workers who described being deported
by boat across the Moei River and met by brokers and armed DKBA troops who then
expected payments in exchange for their release.[162]
In several instances, NGO activists working in Mae Sot were asked by friends or
relatives of detained deportees to assist in arranging financial transfers to
bank accounts in Mae Sot controlled by the above-mentioned brokers, in exchange
for the release of the deportees.[163]

Migrant workers advocates in Mae Sot said migrant workers
are processed for deportation and lists of deportees are prepared at the Mae
Sot IDC. According to those NGOs, the brokers have advance information of the
name of each migrant and from where they have been sent (e.g., Bangkok, Chiang Mai) to Mae Sot. Held under guard in the DKBA-controlled area, each
deportee must then call friends or relatives to arrange payments for their
release.[164]
Activists told Human Rights Watch they suspect that information lists are
provided by Thai officials, and that the proceeds of the ransoms collected are
shared between the brokers, DKBA, and Thai officials.[165]

According to Burmese migrant Min Myo, local police in Mae
Sot arrested him on December 12, 2008, and detained him at the Mae Sot police
station. At 10 a.m. on December 14, officials first sent him to the Immigration
Department holding center close to the Mae Sot-Myawaddy Friendship Bridge, and then, later that day, sent him by Immigration Department truck to the Ta Maha checkpoint.
Immigration officers delivered the group directly to waiting boats, which
crossed the river to the Burmese side where they were met by armed DKBA
soldiers and brokers. Min Myo said those receiving them already knew which
persons had been deported from Bangkok because they had a list, and brokers
told him they paid 300 baht to Immigration Department officers for the name of
each person who had been deported from Bangkok. Migrants from Bangkok are
apparently targeted since they are presumed to be either carrying more money or
are able to access financial resources to be released. But since the brokers
knew Min Myo was arrested in Mae Sot, they assumed he did not have much money
and did not force him to pay for his release, further supporting activists’
claims that the racket is organized between Thai immigration officials and
brokers. This was Min Myo’s third deportation through the Ta Maha checkpoint.
On the two previous times (in 2003 and 2005), he said, armed DKBA soldiers met
him and the other deportees, segregated out those sent back from Bangkok, and
sent them to be held by the brokers. Brokers ordered each migrant deported from
Bangkok to pay 1500 baht for their release. DKBA soldiers and the brokers
punched and kicked those migrants claiming to have no money. The first time he
was held, Min Myo escaped after five days, while the second time, his wife in
Mae Sot arranged payment and he was let go. Min Myo said:

I think the DKBA sends the brokers to buy the people from
immigration. I think the DKBA is doing this like a business. The brokers have
the connections with the DKBA, some are Burmans, and some are Mons. The brokers
are not armed—but they threatened us that if you don’t pay us, we
will hand you over to the DKBA.[166]

Police arrested Ma Swe Swe on January 21, 2009, near the
sewing factory where she worked on the outskirts of Bangkok. Immigration
officers sent her to Mae Sot and she was deported with 107 other migrants to
the DKBA 999 gate on January 29. She recalled that a group of over 10 ethnic
Mon and Karen brokers met them and each one took control of a group of
deportees and transported them by motorcycle taxis to a holding area. The
broker holding Ma Swe Swe told her she must pay a total of 1600 baht to be
released from his custody. She was frightened by the potential consequences of
not complying. She told Human Rights Watch: “If I don’t pay, I
would end up in a Burmese [prison] cell. I feared that I might get sent back to
Burmese immigration.” Ma Swe Swe’s sister paid for her release, and
after the broker confirmed the bank transfer into his account in Mae Sot, she
was sent back across the river to Thailand. Ma Swe Swe said:

I don’t know why I had to pay the money. I just know
it is their [DKBA] area. If we don’t pay, I don’t know what would
happen.... I was so afraid.... When the truck left the IDC [in Mae Sot] a car
followed us the whole way to the gate. They were DKBA. The IDC, DKBA, and pway-za
[traffickers] work together. Money makes everything.[167]

Thai officials sent Burmese worker Wai Lei to Mae Sot on
October 20, 2008, after holding him in detention in Bangkok for almost two
months on an illegal entry charge. The next day, officials sent him with 200
deportees to DKBA Gate 10, where armed DKBA soldiers demanded he pay 1300 baht
for his release. Wai Lei told Human Rights Watch that brokers compelled each of
the deportees to call relatives or friends to secure the ransom for their
release.[168]

VI. Rights Violations in the Migration Registration
System

I
don’t know about the situation with the registration and the Ministry of
Labor because the civil servants only talk to the employers—they never
send the cards or documents to us workers.

On May 26, 2009, the Thai Cabinet passed a resolution to
reopen migrant worker registration to new workers and to those who had
previously registered and dropped out of the system because of job termination
or for other reasons. Registration was permitted for work in a limited number
of industries requiring unskilled labor—fishing, agriculture and
livestock raising, construction, industries connected to seafood processing,
domestic work, and other specified industries. This constituted the seventh
round of temporary, short-term migrant worker registration since 1996.[169]
The Minister of Labor proclaimed this exercise the “final registration.”
According to Ministry of Labor statistics, a total of 1,054,261 migrants (785,017
Burmese, 120,824 Lao, and 148,420 Cambodians) registered for legal status in 2009.[170]

The Department of Local Administration (DLA) of the Ministry
of Interior is responsible for the formal registration (history, photo,
fingerprints) of each migrant and issuance of the TR 38/1 document that serves
as proof of registration.

The DLA then issues a migrant worker ID card. Dependents and
children of migrant workers are not covered by the TR 38/1 registration or work
permit, but must go through a difficult supplemental registration process once
their parent has registered and received a work permit.

After the migrant worker ID card is issued, then the
Department of Employment (DOE) of the Ministry of Labor is responsible for
receiving applications from the worker and prospective employer and issuing a
work permit. Invariably, the number of workers applying for and receiving a
work permit is less than the number who register in the first step of the
process. Among migrants who registered during the so-called “final
registration,” a total of 792,175 migrants applied for and received work
permits, and another 382,541 migrants who had registered earlier renewed their
permits. All 1,174,716 migrant work permit holders must apply to go through the
nationality verification process before February 28, 2010[171]

Employers must report on the status of their migrant
employees to the DOE every three months and inform DOE within seven days if the
worker leaves the job or is terminated. Employers also must arrange housing for
their migrant employees where government officials can easily inspect them. Employers
are also strictly forbidden from hiring migrant workers who have left other
employers without permission. The total fees for registration and health
insurance for one year is 3800 baht.[172]

Critically, the migrant registration process allows
temporary stays, but does not change the formal legal status of migrant
workers. The Thai Cabinet authorizes registrations and instructs the Ministry
of Interior to issue an announcement covering specific groups of migrants who
are granted the right to stay and work under the authority of article 17 of the
Immigration Act of 1979.[173]
However, registered migrant workers from Burma, Cambodia, and Laos are still considered to have entered the country in violation of the Immigration Act of 1979 so
their legal status is considered as “temporary, pending
deportation.”

One consequence of classifying migrant workers this way is
that it makes them ineligible for an array of legal protections, a form of
discrimination that violates Thailand’s obligation to nondiscrimination under
the ICERD. For example, the government has denied such workers access to
compensation under the Workmen’s Compensation Act of 1994 (WCA). Nang
Noom Mai Seng, a legally registered Shan migrant worker, was paralyzed from the
waist down in a construction accident in Chiang Mai on December 4, 2006.
Officials overseeing the Social Security Office’s Workmen’s
Compensation Fund (WCF) decided she was not eligible to receive direct
assistance from the fund. The ruling required her to show a passport showing
legal entry or a standard work permit to access the fund.[174]
The tribunal judged Nang Noom’s work permit to be temporary and therefore
ineligible for compensation.

A November 2007 National Human Rights Commission decision on
Nang Noom’s case found that the ruling “constitute[s]
discrimination and place[s] an obstruction in the way of migrant workers being
able to avail themselves of rights provided by the WCF.”[175]
The State Enterprise Worker Relations Confederation filed a complaint against
the Thai government for violating its obligations as a ratifying state of ILO
Convention No. 19 on Equality of Treatment (Accident Compensation). Convention No.
19 requires that a ratifying state must provide the same treatment in providing
worker’s compensation to foreign nationals of a state that has also
ratified the convention as it does to its own nationals.[176]

The migrant registration system directly facilitates
employer control by severely restricting migrant workers’ right to change
employers. Registered migrant workers can request to change the type of work or
location of work, but must remain working for the employer that registered
them. Under the system, registered migrant workers can only change employers if
an employer has gone bankrupt, has violated the worker’s rights according
to the labor law, or the employer agrees to terminate the worker and sign a
transfer form allowing him to go to another employer. In the case of rights
violations, the worker must prove the violations to the satisfaction of a labor
inspector from the Department of Labor Protection and Welfare. In case of
termination, the rules provide a migrant worker only seven days to transfer—making
it virtually impossible for workers to transfer unless they have the active
cooperation of their former employer.

In order for a migrant worker to change employers, the
existing employer must sign a bai jaeng awk (termination and employer
transfer form). In Mahachai district of Samut Sakhon province, migrants report
employers’ representatives commonly demand money—3000 to 4000 baht—to
sign this form, and if they are not given the money, they will not authorize
the transfer. Without a signed form, workers must abandon their legal status
and registration. This happened to Zar Ni, who remarked that, “I get
angry that where I want to go I am not allowed to go. It makes me feel that I
must work for them forever.”[177]
Another worker, Naing Ko, confirmed that “there are always difficulties
about work transfer letters.... If the former employer does not give the
transfer letter, we cannot continue our migrant ID and we become the illegal
workers.”[178]

This system gives employers enormous leverage over migrant
workers, who live in constant fear that they will be terminated, lose their
legal status, and become subject to immediate arrest and deportation. Many employers
exploit their position of power by demanding migrants work long hours for
little pay, withholding wages, and failing to meet other minimum protections in
Thailand’s labor law. Intimidation is compounded by employers’ common
practice of seizing original migrant worker documents, such as migrant worker
ID cards.

Comprehensive research by the ILO found employers engaged in
widespread confiscation and holding of workers’ ID cards, with these
practices affecting 39 percent of fishing sector workers, almost 50 percent of
domestic workers, and more than 33 percent of manufacturing employees and
agriculture workers.[179]

When migrant workers change employers, they find themselves
in a risky legal status as they wait for the transfer to be finalized. In some
instances, police arrest migrant workers during this period. Sai Saw said local
police apprehended him in Chiang Mai in August 2008 at the construction site of
his new employer. He told police he was in the process of changing his registration
but his card still listed him as attached to his previous employer. The police
refused to believe his explanation and detained him at the Chang Phuak sub-district
police station overnight. The next day, the Chiang Mai court fined him 1000
baht. He said he evaded deportation by bribing a well-connected broker 3000
baht to be set free in front of Chiang Mai city hall instead of being taken
back to the Chang Phuak police lock-up.[180]

Mistreatment of Migrants by Employers, Brokers, and
Authorities in the Migrant Worker Registration System

The highly complicated migrant registration system is
daunting to many migrant workers who lack both the detailed understanding of
the bureaucratic steps and the requisite skill in written and spoken Thai to
successfully navigate the process. Most migrant workers either hire brokers or
rely on their employer to make their applications. As a result, they are
frequently overcharged, paying more than the official 3800 baht for
registration and medical insurance. Brokers cheat unsuspecting migrant workers
by offering to handle the workers’ registration application and then
simply taking their money.

Some employers take advantage of restrictions on
workers’ ability to change employers to charge excessive fees. Aik Neng
described how he paid his employer at a knitwear factory in Om Noi district in
Nakhon Pathom province 4000 baht before the registration process had even
started, and was expected to pay an additional 4000 baht after the registration
was completed.[181]

Even more skilled migrants pay inflated fees. Ma Myo, a line
supervisor at a garment factory in Mae Sot, said that “I had to pay 4300
baht this year to get my work registration. Really, I know that it is only
supposed to cost 3800 baht, but my employer said that she has to pay 500 baht
for what she calls ‘employers fees.’”[182]

In some cases, brokers are willing to serve as a migrant’s
employer of record or locate a Thai who has previously received permission to
hire migrant workers and is willing to file an application for migrant
registration in return for fees. Say Sorn, an ethnic Mon migrant worker who is
fluent in Thai, explained that even he had to pay a broker 5000 baht for his
re-registration, “because I did not know the law.”[183]
His factory would not register him, so he relied on the broker to find a
“paper” employer. He added, “The employer listed as my
employer is not my real employer, but someone at that factory who the broker
found to say that he is my employer.”[184]

The failure of the migrant registration system also spawns
informal, substitute provincial systems for registration of migrant workers. In
Rayong, Pattani, and Ranong, provincial governors launched systems to attempt
to identify the numbers of migrant workers in the province and set out systems
of control. As a result, in these three provinces, there are systems to issue
local ID cards with unclear standing in law.

In Ban Phe sub-district in the Muang district of Rayong,
migrant workers pay 200 to 300 baht per month for a card that will help prevent
them from being arrested by the local police. However, migrants report that if
police come from other sub-districts or the provincial level police offices,
the monthly card will not protect them from arrest.[185]
Copies of the monthly card seen in Ban Phe in January 2009 list the migrant
worker’s name and nationality, the name of the fishing boat to which the
migrant is attached, the workers’ photo, and a stamp of the Rayong branch
of the Thai Fisheries Association (TFA). NGO workers in the area told Human
Rights Watch that monthly fees from fishermen and their shore-based family
members are sent to the TFA.[186]

In Pattani, the production of ID cards is done by the
provincial chapter of the Thai Fisheries Association. Migrant workers told
Human Rights Watch that the card protects them from arrest by local police in
areas near the Pattani fishing port. The card costs 500 baht for three months. The
provincial Department of Employment chief insists that the association card
does not have legal status but that he is largely powerless to prevent its
distribution because it is a private arrangement between the migrant workers,
the TFA Pattani chapter, and the police.[187]

Ranong province previously issued a local migrant worker ID
card offering protection from arrest by local police in certain areas of
Ranong. The degree of the card’s coverage and protection is subject to
the discretion of local police and army officers intercepting migrants. Su Su
described the police arrest of her husband and sister on November 20, 2007, as
they traveled from their workplace at Ranong National Park to see Su Su’s
sick father in Ranong Hospital. She said that

Usually the police don’t accept this [as an ID] and
always ask for bribes. He [the policeman] said [to my husband] “Your card
is already out of date and you are not allowed to come here ... This temporary
card does not allow you to go out at night.”

Su Su had to enlist the help of a
Thai to travel to the local police post where her relatives were held, and
negotiate the price of release from 6000 baht down to 3000 baht.[188]

VII. Labor Rights Abuses

The Ministry of Labor publicly asserts that all migrants are
officially protected by the labor laws—such as the Labor Relations Act of
1975 (LRA) and the Labor Protection Act of 1998 (LPA), and bilateral MOUs on
migrant employment between Thailand and its neighbors Burma, Cambodia, and Laos—and
that all labor laws apply equally to migrant workers. However, the labor law
excludes domestic workers, one of the major sectors for employment for female
migrants.

Furthermore, as we have seen, the migrant registration
scheme compels workers to remain with the employer who legally registered them.
Migrant workers who lose their jobs, or are found to be working for an employer
for whom they are not registered, become liable to immediate arrest and
deportation.[189]
Often, the mere threat of firing, or calling the police to the factory, is
sufficient to cause migrant workers to withdraw their demands for protection
under Thai labor laws and the various international human rights instruments on
labor ratified by Thailand.[190]

Human Rights Watch found many serious abuses of
migrants’ rights at work, including intimidation and threats, especially
in cases when workers seek to organize and collectively assert their rights,
and cases of retaliation when workers filed grievances with Thai authorities
against their employers. Both registered and unregistered migrant workers
complain they face physical and verbal abuse, forced overtime and lack of
holidays, poor wages and dangerous working conditions, and unexplained and
illegal deductions from their salary.[191]
Migrant children work in situations of serious labor exploitation, and in many
cases are involved in the worst forms of child labor.[192]
Unauthorized departure from work also frequently means the migrant worker
forfeits whatever outstanding wages are owed to him. Throughout the process,
the migrant must be on guard against employers’ use of immigration
officials and police, or sometimes local thugs or supervisors to retaliate
against the migrant worker.

No Freedom to Organize and Collectively Bargain

Most migrant workers we interviewed had little understanding
of their internationally recognized right to organize to collectively assert
their rights. Many said they feared punishment, including grievous bodily harm,
from their employer or local officials and police if it was learned they were
organizing their fellow workers. Virtually all those interviewed assert this
fear is well justified because employers target and retaliate against migrant
workers who seek to assert their rights in the workplace.[193]

The rights of migrant workers to establish and register a
trade union are clearly restricted in Thai law, in violation of ILO Convention No.
87 (Freedom of Association). While Thailand has not ratified this convention,
it is bound as a member of the ILO to comply with ILO Declaration on
Fundamental Principles and Rights at Work.[194]
Article 88 of the Labor Relations Act of 1975 (LRA 1975) limits the right to
establish a trade union to those having Thai nationality. Similarly, article
100 provides that only persons with Thai nationality can be members of the
union executive committee and sub-committees set out as the legal leadership of
the union.[195]
As a result, migrant workers may be regular members of a trade union, but the
union must be founded and led by Thais.

Phoe Zaw, a Burmese factory worker in Mae Sot, told Human
Rights Watch that on August 11, 2008, a security guard attacked him without
provocation at the knitting factory where he worked. His left hand and arm were
broken fending off the blow of the guard’s nightstick. The guard reported
that he thought Phoe Zaw was a banned worker, a claim that Phoe Zaw and his
fellow workers rejected. Phoe Zaw instead believes he was attacked because of
his labor rights activities.

Phoe Zaw said, “I think ... I was attacked because of
my actions in leading the workers when we were unhappy about having to work on
Sundays. The manager always wanted us to work seven days a week ... the workers
were scared to organize a group to do anything about this.”[196]
Two weeks before, on July 27, Phoe Zaw led a spontaneous work stoppage at the
factory seeking higher pay, time off on Sunday, and better quality rice and
water from the management. The workers ignored the orders of the infuriated
Thai manager to return to work or face dismissal, prompting the factory owner
to come and negotiate in an open meeting with the workers. Following this
incident, Phoe Zaw told Human Rights Watch that his co-workers frequently
invited him to discussions and recognized him as a leader, and work supervisors
intensified their scrutiny of his work and actions.

After the attack on Phoe Zaw, workers saw the manager with
his arm around the security guard, who was employed by a security contractor
firm that removed the guard from the factory the next day.

Even the suspicion of being involved in organizing or
coordinating group activities by workers brings migrants under potentially
hostile suspicion from managers. Mon Mon Shwe said she attended a meeting of a
labor rights organization operating in Mae Sot. It made her manager suspicious—so
she lied and told him the topic of the gathering was family planning. “I
think if they [management] found out they would be aggressive.... The employer
does not want us to know about rights or more salary. When we are working here
we are working under fear,” she said.[197]

Despite assertions by the Ministry of Labor that all migrant
workers are covered by Thailand’s labor laws, in practice those
laws’ protections are seldom implemented in the case of migrant workers. In
2008, the Labor Rights Subcommittee of the NHRC stated in its summary report on
its six years of work that:

From our investigations, it was found that when migrant
workers appointed a representative to bargain about wages or welfare, the
employers harassed them, discretely arranged for physical attacks against them,
had them arrested and charged with criminal offenses, and as we always found
when there was bargaining taking place or a dispute within the factory, called
in the police to inspect the workplace. Those workers with migrant worker IDs
would be quickly terminated, making them equivalent to persons who entered the
country illegally, and the police quickly arrested and deported them—even
though they have filed complaints that are in the process of being investigated
or are in the courts.”[198]

Intimidation and False Allegations against Workers

Employers use bullying tactics and fraudulent accusations to
keep migrant workers in fear and under their control, correctly believing that
most migrant workers will not risk potential retaliation or arrest by police in
order to file a complaint.

Yos Rangseay, from Cambodia, told Human Rights Watch that he
supervised 25 Cambodian workers for an abusive Thai employer at a fish
packaging factory[199]
for five months in Rayong province in 2007. Rangseay said he faced intense
verbal abuse and regular threats of physical violence every time the workers
made mistakes in the production process. Rangseay recalled meetings when his
manager said to them, “If you do work like this, and [are] not well.... I
can shoot you any time that I want, and throw you like a dog by the side of a
road.” The employer allegedly reinforced his threats by displaying a gun
when meeting with Rangseay and the workers. Rangseay said:

[The employer] put a gun on his desk where we could all see
it, and [then] calls the meeting around the desk.... He did this when he was
angry.... [it] was a revolver. He said these kinds of things to me, right in
front of the workers.

According to Yos Rangseay, the employer frequently acted as
if he was going to hit workers in addition to verbally abusing them. When Yos
Rangseay and his wife decided to quit, the employer berated them at the
factory, refused to let them leave, and ordered other workers not to enter the
factory. Yos Rangseay credits his survival solely to the presence of another
Thai man in the meeting. He was finally allowed to quit on the condition that
he not claim the wages he had earned in the previous week. Yos Rangseay said
that the Cambodian migrant workers believe the employer has a close
relationship with the Ban Phe sub-district police and added this is the major
reason that Cambodian migrant workers fear him.[200]
The factory frequently violated the labor law by paying wages late, and
threatening or severely penalizing workers who sought to take leave by docking
their pay.[201]

Other employers use a less direct but equally effective
route to intimidate workers when attempts are made to assert rights, receive
back-pay, or change employers. Human Rights Watch found many cases where an
employer made false allegations about their workers and then called the police
to come arrest them.

In October 2008, Koy Mala, an 18-year-old Mon from Burma, said she informed her Thai employer in Samut Sakhon province that she was quitting
work because she could no longer physically withstand the 18 to 20 hour
workdays at the restaurant. The restaurant owner held Kao’s original
migrant registration card and refused to let her quit, she said. After failing
to persuade Koy to change her mind, she said her employer falsely accused her
of stealing from another worker[202]
and called two police officers from the Muang district police station.

Koy Mala told Human Rights Watch: “My
employer said to the police, ‘You take care of her any way that you
want’ and, ‘You can do anything you want with her.’ And I
thought to myself, what does that mean...? Are they going to beat me? Are they
going to rape me?”[203]

The officers and the owner then cajoled and threatened Kao
to stay at work or she would be arrested. When Koy refused to be dissuaded, the
owner alleged Koy was undocumented and demanded she be arrested. The police
took her away, ignoring the pleas of Koy and her mother (who arrived to take
her home) that she had a migrant worker ID card.[204]
Koy said that she was in shock and fearful on the way to the Muang district
police station:

I was so worried ... I thought they can take me anywhere
they want, maybe they would take me somewhere and do things to me—and I
knew that I could not resist.... because I am a woman.[205]

The police held Koy in the police station lock-up for six
days until the Labor Rights Promotion Network (LPN) engineered her release by
finding a new employer to hire her.[206]

Retaliation against Workers Filing Labor Complaints

For those migrant workers raising complaints of unfair
treatment to the Department of Labor Protection and Welfare (DLPW), the risk of
retaliation from their employers is real.[207]
On October 7, 2008, Saw Lei, a construction worker from Burma, filed a complaint with the Mae Sot DLPW office when his employer refused to pay him back
wages of 2250 baht taken in unauthorized daily deductions from his salary.[208]
The next day, Saw Lei went with the DLPW officer to his employer’s house
to negotiate a settlement. During the discussions, his employer’s wife
took multiple close-up photos of Saw Lei in an intimidating manner. The three
Thais did not permit Saw Lei to sit at the table with them, so instead he
squatted on the floor at their feet while they discussed his settlement. When
he disagreed with the employer’s proposal of a delayed payment, his
employer erupted in front of the DLPW officer, kicked Saw Lei in the shoulder,
causing him to cry out and topple over in pain, and then stormed out of the
room, ending the negotiations.

The real role of the DLPW became clear when the officer
returned to his office with Saw Lei, drafted a report in Thai (which Saw Lei
told the officer he could not read), and ordered him to sign it. Saw Lei
refused. The same evening the DLPW officer tried again by visiting him at the
Yaung Chi Oo Workers Association (YCOWA) office. A YCOWA translator reviewed
the document and found it stated that Saw Lei did not want to sue his employer
and did not want his money back.[209]
The employer then mounted a campaign to intimidate Saw Lei to drop the matter. According
to Saw Lei’s brother, who is still at the worksite, the employer has asked
other workers at the worksite “who is related to him [Saw Lei]? I will
find them” and demanded to know about Saw Lei’s movements and
whereabouts. Saw Lei sent his family back to Burma for safety and his brother
pleaded with him to drop the case.[210]

Aung Zaw, a Burmese migrant worker, told Human Rights Watch
about the beating he suffered when he sought to collect his back pay from a
knitting factory in Mae Pa sub-district, Mae Sot district, Tak province. He
said that as he approached the manager’s office at the factory on the
evening of the June 15, 2008, the manager and four other staff came out of the
room and assaulted him. Two of the men stabbed Aung Zaw with screwdrivers in
the forehead, temple, and back of the head. Describing his injuries, he said that
“my head was bleeding and my eye was hurt. I felt very dizzy, I could not
see clearly, and I fell down on the floor.” The manager then took Aung
Zaw to a construction site and abandoned him there, leaving him to sleep in the
construction yard with his injuries still untreated.[211]

Khin Moe is an unregistered construction worker from Burma in Mae Sot. In October 2007, he and the other workers on his crew faced problems with
their Thai manager, who paid them only about a third of the back wages they
were owed. Khin Moe told Human Rights Watch that he led an effort to file a
complaint with the DLPW office in Mae Sot. DLPW officers called his employer to
the office to negotiate, and the employer agreed to pay the owed back wages. But
as Khin Moe biked from the DLPW office home, he said his manager rode up on his
motorcycle with a policeman (whom Khin Moe saw at the DLPW office) sitting
behind him. The policeman arrested Khin Moe for not having a migrant ID card,
sent him to prison for 13 days, and confiscated his bicycle.[212]

Labor Exploitation

Migrant workers regularly work more hours than is legally
permitted by Thai labor laws, get paid sub-minimum wages, work in unsafe
conditions, and face illegal deductions from their pay. In some cases, migrant
workers are cheated out of all their wages by unscrupulous employers,
sub-contractors, or supervisors, leaving them with a difficult choice to
continue to protest (and face possible retaliation) or abandon their pay
claims, shift employers, and hope for better treatment next time. The
inordinate control that employers have over a migrant’s ability to
transfer employment means that many migrants face the choice of enduring
exploitative work conditions or leaving abusive conditions without their
employer’s consent and thereby losing their documented status.

Comprehensive research by the ILO in 2005 found migrants
working extremely long hours for less than the minimum wage. For example, 62
percent of fishing boat workers, 39 percent of fish processing workers, and 82
percent of domestic workers were working more than 12 hours per day, yet few were
paid the minimum wage, and even fewer received correct wages with overtime
factored in to their pay packet. Even manufacturing workers working between 9
to 12 hours per day are effectively cheated out of the legal overtime payments
they are owed.[213]
Another ILO report published in 2006 found that 83 percent of child workers
surveyed in Mae Sot were working 11 to 12 hours per day, and 49 percent were
not permitted to take any days off during the course of a month—yet
employers paid these child workers only one-third to one-fifth as much as the
legal minimum wage.[214]

Mom Channary, a Cambodian construction worker, faced
difficulties in September 2008 with a Thai construction sub-contractor who paid
her first two days on the job but then failed to pay for the rest of the
month’s work. She said her boss threatened her and six other Cambodian
workers with arrest by the police if they complained. Meanwhile, Thai citizens
from Surin province who were also on the work crew took the matter to the
construction contractor who had hired the sub-contractor. The Thais secured
payment of their back-wages but when the Cambodian workers went to seek the
same remedy, they were told the money was all gone. She said:

I was so angry, I wanted to yell and I wanted to scream—but
I was not brave enough because that person threatened that if anyone raised an
issue he would file a police complaint and have the police arrest us.... I am
certain the police would come, because if it is a Thai who files the complaint,
then they will definitely come. But for me [if I filed a complaint], I
don’t know if they would come.... I am too scared to even call the police
station.[215]

When they are changing employers, migrant workers are often
cheated out of wages owed to them. Ma Myo, a Burmese line supervisor at a
garment factory in Mae Sot, said she told her manager she was quitting during
the first week of April 2008. The manager told her to come get her final pay
(2800 baht) after the Buddhist New Year.[216]
But when she went on April 16, the manager presented her with a sheet of
specious deductions for damaging clothes in production and demands for payment
of water and electricity bills. The owner’s computation claimed Ma Myo
owed the factory 3500 baht. Ma Myo filed a complaint with the DLPW, but she
said that many migrant workers either do not have the knowledge or the courage
to do this. Meanwhile, the employer held and never returned her migrant worker
ID, making her vulnerable to arrest and extortion by local authorities.[217]

Cheating of wages happens even on Thai government projects. Sai
Ti, an ethnic Shan from Burma who is a legally registered migrant worker, told
Human Rights Watch that he was cheated out of five months of wages by a
contactor constructing a bridge at a Royal Thai Army base in Mae Rim district,
Chiang Mai province. The contractor owed each worker more than 15,000 baht, but
he never paid them anything.[218]

Even when applying for poorly paid wage work, migrant
workers must pay. Interviews with workers in Samut Sakhon found undocumented
migrants are frequently required to pay informal application “fees”
to get jobs in factories. For example, Mi Mi, an undocumented migrant from Burma with two dependent children whose husband is in jail, finds the application fees are
a tremendous barrier to seeking gainful employment. She said:

I have to pay a lot of baht to apply and get a job. I
don’t know why I need to pay this money, but it’s like a system—whoever
has some money can find a job. They [the employer representatives] say to me,
well if you don’t want to give to me, you don’t have to work here.

She stated that for legally registered migrants seeking to
transfer, the usual fee is between 2000 to 2500 baht while undocumented
migrants must pay more.[219]
Another Burmese worker in Mahachai, Zar Ni, said that he had to pay 2500 baht
to a supervisor to obtain a job. Ultimately, he said, the workplace cheated him—he
held his job for only a short time before being terminated because he was not a
legally registered worker.[220]

Seizure of Migrant Worker Documents

In 2008, the US State Department reported that in Thailand,
“Employers routinely kept possession of migrant workers’
registration and travel documents, which restricted their travel outside of the
work premises.”[221]
Without their original documents in hand, migrant workers are highly vulnerable
to local officials’ discretion on whether to accept the documents as
legitimate. As noted in several cases above, police and other authorities often
use the fact that workers are carrying photocopies rather than original
documents as a pretext for temporary detention and extortion.

In her experience in Mae Sot, Burmese migrant Ma Myo said
employers justify holding the original registration documents of migrant
workers by claiming they are required to keep track of the workers they
register. Without their original documents, registered workers are often
detained by police who then call their employers to send representatives to
take those workers out of detention and pay any fees (legal or otherwise) for
their release. In this way, the onus for monitoring migrant workers is
transferred from government to the workers’ employer. This arrangement serves
the employers’ interests in limiting the ability of workers to change
employers while also supporting the government’s underlying national
security rationale in investing employers with full control over the workers. Ma
Myo said:

Most of the employers do not allow us to hold the original
worker ID card because they say they granted us the work permit, they had to go
to sign for it, and that if we go to some other place, or go to work for
someone else and then cause trouble, then the employer who signed for the work
permit might get in trouble.[222]

Mi Mi said that her migrant worker ID card is held by the
management of the textile factory in Samut Sakhon where she works. Normally,
she is only able to carry a photocopy of the card although she added that she
could ask for her original card in case she needed it for a specific purpose. She
said “I thought that they [factory management] were worried that I might
try to move to another factory and leave that area. They would lose and so they....
make sure that we [migrant workers] can’t leave.”[223]

The practice of employers holding migrant workers documents
is an informal yet effective form of travel restriction, but it is supplemented
by formal travel controls. Migrant registration IDs are issued with the
restriction that migrant workers remain within the province where their
workplace is located. They must request and receive written permission from the
district chief (an appointed officer of the Ministry of Interior) if they wish
to travel outside the province. The application procedures reinforce
employers’ control over their migrant employees because unless the
employer or his representatives signs the application, the district chief will
usually refuse to grant permission. As a consequence, it is quite difficult for
migrant workers to obtain approval for travel outside their designated
province.[224]
Registered migrants who travel beyond their province without written
authorization are often arrested and are subject to deportation.

Ko Shwe, an ethnic Mon migrant
worker from Burma who works in Muang district, Surat Thani province, said that
district officials refused permission for him to travel to tend to a severely
ill relative: “I stay in Thailand, I made the migrant worker ID and I
paid for it—but I do not feel free.... Freedom of movement is something
that is only on paper for us migrant workers.”[225]

VIII. Impunity for Abuses against Migrants

Both documented and undocumented migrants repeatedly
expressed the view that complaining about the abuses they face is dangerous
because both Thai authorities and private individuals can retaliate against
them with relative impunity.

The language barrier, especially for migrants from Burma and Cambodia who lack spoken proficiency in Thai, makes it easier for government officials and
private Thai individuals to identify and target migrants. Even in provinces
like Samut Sakhon, Samut Prakan, Rayong, Ranong, and Sangkhlaburi, with large
populations of migrant workers, the vast majority of Thai government offices do
not have interpreters available to help migrants and must rely on NGOs to make
an interpreter available when the migrant is bringing forward their case.

Many migrant workers are also largely unaware of their
rights, reflecting weaknesses in human rights education in their countries of
origin, the dearth of Thai government information in migrants’ languages
about migrants’ rights under law, under-resourced efforts of NGOs and
civil society groups trying to help migrants, and the vested interest of
employers and local officials in keeping migrants ignorant.

Since many migrants lack legal status, local connections to
influential persons, and the backing of a social network or local community,
they feel powerless to resist such intimidation. Many migrants told Human
Rights Watch they do not trust the Thai justice system since the Thai police
would be the ones with whom they need to file criminal complaints, are the
group most responsible for extortion and abuses against migrants. Even in the
most grievous cases of human rights abuse, relatively few migrants are willing
to bring formal complaints to Thai authorities unless they can secure
assistance from NGOs who will help provide protection and financial support to the
migrants as their case progresses through the legal process.

Only occasionally do exceptions to impunity arise, and these
are usually only in particularly egregious cases of abuses that garner
international attention, such as the suffocation death of 54 migrant workers
smuggled in a truck in Ranong province on April 10, 2008.[226]
Even in that case, Ranong police refused to treat the incident as a human
rights case deserving special attention, and instead quickly sent to the court
illegal entry charges against the 67 surviving migrants. Only six lower-level
gang members were indicted on charges of providing shelter to illegal migrants
and recklessness resulting in death.[227]
Many observers decried the failure to locate the gang leaders and prominently
raised suspicions of local police involvement in the smuggling operation.[228]

Other exceptions have occurred when a case involves
individuals that the police have apparently targeted for their own reasons. The
case of Saengroj Kanchana, son of a prominent political family in Surat Thani,
is a well-known example. Saengroj was arrested, along with a police accomplice,
and convicted in 2006 for detaining and repeatedly raping two Burmese women he
lured with the offer of a job as domestic workers. Representatives of the
Migrant Workers Department of the Federation of Trade Unions-Burma (FTUB) who
were directly involved in assisting the victims told Human Rights Watch that
the Surat Thani police had been after Saengroj for quite some time because of
continuous trouble he caused in the area. The police told the FTUB that they
believed Saengroj had previously raped a number of Thai and Burmese women in
the area but that they had not successfully persuaded any of the prior victims
to testify against him.[229]

Occasional and inconsistent enforcement of the law does not
threaten the continuity of Thailand’s manifestly unjust system; spikes of
publicity and action are followed by a quiet return to the status quo. Extreme
cases that have the persistent advocacy and attention of NGO and trade union
advocates, diplomats, or journalists[230]
are used by Thai authorities for great photo opportunities to make lofty
promises to protect migrants’ rights and improve regulatory systems. However,
as soon as public attention shifts elsewhere, impunity for the continuing mistreatment
and exploitation of migrant workers returns.

Other than NGOs, migrants in Thailand have few allies in
their effort to seek justice. Migrants do not frequently turn to their
embassies in Bangkok, either because they are fearful of facing problems for having
left their countries of origin illegally or because the embassies are not seen
as willing to help. Even in cases of grievous abuse, such as that suffered by
Aye Aye Ma, who was raped and her husband killed, migrant workers often avoid
their embassies. As Aye Aye Ma put it, “our Burmese government does not
care about this and does not care about us. I did not even bother to contact
the Burma embassy in Bangkok because I know that they will not help me at
all.”[231]
Lao migrants also are reluctant to reach out to their embassy because they fear
they could get in trouble if they left Laos illegally. Local Lao government
officials reportedly continue to levy fines against Lao workers who left the
country without a passport and an exit visa, despite central directives from
the Lao PDR government to end these penalties.[232]

IX. Recommendations

To the Office of the
Prime Minister

Establish a special commission
to independently and impartially investigate the allegations of systematic
human rights violations perpetrated by the Royal Thai Police and
immigration officers against migrant workers in Thailand. This should
include the failure of the police to properly investigate crimes against
migrants and corrupt practices against migrants in border areas. The
commission should be composed of competent and respected representatives
of government, nongovernmental organizations including migrant worker
groups and trade unions, and academia. The commission should have an
adequate budget, the power to subpoena witnesses and compel provision of
documentary evidence, and produce a public report. It should be empowered
to make recommendations for criminal investigations in specific cases and
for changes in laws, regulations, and policies adversely impacting the
human rights of migrants.

Ensure that the National
Commissioner of the Royal Thai Police immediately takes all necessary
measures to end the torture and ill-treatment of migrants by the police. All
reports of torture should be promptly, effectively, and impartially
investigated. Those implicated in abuses should be disciplined or
prosecuted as appropriate, regardless of rank. Particular attention should
be given to investigating abuses committed against migrants on a
systematic basis.

Ensure that the Royal Thai
Police and the Department of Corrections bring conditions for migrant
detainees in police lock-ups and immigration detention centers into
compliance with international standards, such as the UN Standard Minimum
Rules for the Treatment of Prisoners.

Establish an independent and
impartial national level ombudsman office to receive complaints from migrants
regarding human rights violations committed by the police and other
authorities, as well as abuses by employers and other private individuals.
The ombudsman’s office should be empowered to compel production of
evidence and appearance of witnesses during investigations and make
recommendations for criminal investigations. Such offices should be
staffed with translators in the main languages spoken by migrants.

Ensure that the national police devote resources and
energy to the investigation of alleged criminal offenses against citizens
and non-citizens without discrimination.

To the Ministry of
Interior

Order the governor of Samut
Sakhon to revoke the restrictive policies against migrants.

Provide effective oversight to
ensure that the governors of all Thai provinces respect the fundamental
rights of migrants—including the rights to freedom of movement,
assembly, and association and protection from arbitrary interference with
privacy, family, home, or correspondence—in line with Thailand’s
obligations under international law.

Give priority to investigating high-profile incidents in
which migrants were victims to establish the principle that the
authorities will treat crimes against migrants as seriously as those
against Thai citizens. For instance, the ministry should order the governor
of Phang Nga to conduct a thorough review of the investigation of the
killing of migrant worker Cho and the rape of his wife, Aye Aye Ma, on
November 5, 2007, in Thai Muang district of Phang Nga, and ensure that the
case is fully and properly investigated. The ministry should also order
the governor of Tak province to conduct a full and immediate investigation
of the alleged criminal actions of police in the Kilometer 48 area of Pop
Phra district, Tak province. It should also do the same with similar cases
in other provinces.

To the Ministry of
Labor

Immediately reform the migrant
registration system so that employment-based visas are not
specific to particular employers. Ensure that workers can change employers
without losing legal status and without having to obtain their first
employer’s permission.The time period
allowed for terminated migrant workers to find a new employer should be
increased from the current seven days, which is manifestly inadequate, to
no less than 60 days in line with recommendations of migrant advocates.

Amend articles 88 and 100 of
the Labor Relations Act of 1975 to allow for persons of all nationalities
to apply to establish a trade union and to serve as a legally recognized
trade union officer, and ensure that the revised Labor Relations Act is
fully in compliance with the standards set out in ILO Convention No. 87
(Freedom of Association).

Provide adequate budgetary
resources and personnel, and political commitment, to give priority to labor
inspections of workplaces with migrant workers, protect migrant
workers’ rights, and ensure effective enforcement of all Thai labor
laws. Provincial Ministry of Labor offices should be provided resources
and authority to hire dedicated interpreters to ensure that information
about labor laws, regulations, inspections, and complaints procedures are widely
distributed to migrant workers in their own languages, and grievances by
migrant workers can be received by the Ministry of Labor offices in
migrants’ own languages. Labor inspectors should actively seek the
cooperation of NGOs working with local migrant communities.

Immediately develop an
administrative process to ensure that stateless persons from the region,
such as ethnic Rohingya from Burma, can be registered to work and reside in
Thailand as migrant workers.

Take the following steps to reform the process of
nationality verification of migrant workers from Burma, Cambodia, and Laos:

Ensure all Burmese workers traveling to the border for
nationality verification are able to move freely, without harassment by
police or other local officials;

Launch an intensive education campaign to inform migrant
workers in their own languages about the specific details and steps of
the nationality verification process;

Set clear regulations to control the activities and
levels of fees charged by private sector brokers offering services to
facilitate nationality verification procedures, including strong penalties
to deter cheating and abuses;

Keep channels open for nationality verification for as
long as needed to allow all migrant workers to enter the process, and
ensure that migrant workers eligible for nationality verification are not
deported;

Include representatives of NGOs,
trade unions, and migrant worker associations in policy forums setting
out steps to reform the nationality verification system.

Publicly call for the
establishment and institutionalization of bipartite committees in all
workplaces where migrant workers are present, in compliance with Thai
labor laws, and ensure opportunities for migrant workers to serve on those
committees. Conduct proactive monitoring and extension of protection
against retaliation to those migrant workers serving on the committees.

In provinces and districts
where there are major concentrations of migrant workers working in
industrial settings, the MOL and the DLPW should support NGO efforts to
provide information and support to migrant workers seeking assistance with
the labor law.

Coordinate with the Ministry
of Interior to end restrictions on the rights to freedom of movement for
registered migrant workers, in line with Thailand’s obligations
under the ICCPR. Registered migrant workers should be allowed to cross
provincial borders freely, and reside where they wish, providing updated
information to the migrant registrar.

Issue official documents, such as migrant worker ID cards
and work permits, directly to the worker rather than to the employer. Since
seizure of migrant worker documents violates government regulations
requiring migrant workers to hold their own documents, the ministries
should reform, coordinate, and enforce regulations to appropriately
penalize employers who seize and hold migrant workers’ original
registration documents. The government should undertake a public “no
tolerance” campaign against all employers, including individuals who
hire domestic workers, who seize and hold migrants’ original
documents.

To the Ministry of Social Development and Human Security

Coordinate with all
relevant government agencies to ensure they dedicate adequate resources
and personnel to combat forced labor and human trafficking in all its
forms. This includes the thorough investigation, prosecution, and
punishment of those involved in forced labor and human trafficking,
especially police and other government officials directly involved.

To the Ministry of
Justice

Immediately take action to “develop realistic and
effective cooperation in the criminal justice system to remove impunity for
traffickers and provide justice for victims” as part of Thailand’s commitments under the Coordinated Mekong Ministerial Initiative against Trafficking
(COMMIT) process.

To the Ministry of
Foreign Affairs

Immediately accelerate and
coordinate the efforts of the Thai government to complete its initial
report as a ratifying state of the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD), due in 2004,
which has still not been submitted to the Committee on the Elimination of
Racial Discrimination.

Increase cooperation regarding regulation and oversight of
brokers/middlemen who recruit workers to come to Thailand, and collaborate on information campaigns to raise awareness among migrants about their
rights.

To the Royal Thai
Government

Ratify the International
Convention on the Protection of All Migrant Workers and Members of Their
Families.

Ratify core ILO Convention No.
87 (Freedom of Association) and Convention No. 98 (Right to Organize and
Collectively Bargain). Ensure that national labor laws fully conform to
these standards, and initiate programs to educate migrant workers (in
their own language) about these core trade union rights.

Promote Thailand’s full compliance with the ICERD. Convene a consultative process with Thai civil
society organizations, migrant workers advocates, and representatives of
migrant workers, to provide inputs to Thailand’s overdue initial
report, and second and third periodic reports, to the Committee on the
Elimination of Racial Discrimination.

Adopt policies and legislation
as appropriate to ensure the progressive realization of the rights of
migrant workers in accordance with the International Covenant on Economic,
Social and Cultural Rights to fair wages and equal remuneration for work
of equal value, a decent living for them and their families; safe and
healthy working conditions; and provision of rest, especially a reasonable
limitation of working hours, and periodic holidays.

Ratify the Protocol to
Prevent, Suppress And Punish Trafficking in Persons, Especially Women And
Children, Supplementing the United Nations Convention Against
Transnational Organized Crime.

Promptly ensure that Thailand is fulfilling its
obligations under the Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment, in particular by ensuring a legal
prohibition against torture using the definition of torture under article
1 of the convention. Penalties for torture should appropriately take into
account their grave nature, in compliance with article 4. Given the
significant fears that migrants express about potential retaliation for
raising complaints about mistreatment while in custody, the government
should also agree to be bound by articles 21 and 22 of the convention,
which allows for individual complaints to be raised with the Committee
against Torture.

To the National Human
Rights Commission of Thailand (NHRCT)

The NHRCT’s Subcommittee on Labor Rights should
proactively engage relevant government agencies, Thai civil society
organizations, and migrant worker associations to uncover and investigate
human rights abuses against migrant workers, including those described in
this report, and make recommendations for actions to stop such abuses
against migrant workers and to hold accountable those responsible.

To the Association of
Southeast Asian Nations (ASEAN)

ASEAN
should promote Thailand’s compliance with the ASEAN Declaration on
the Protection and Promotion of the Rights of Migrant Workers, especially
to “take into account the fundamental rights and dignity of migrant
workers and family members already residing with them” and, as a
labor receiving state, to “intensify efforts to protect fundamental
human rights, promote the welfare and uphold the human dignity of migrant
workers.”

The
ASEAN Intergovernmental Commission on Human Rights (AICHR) should play a
leadership role in engaging with Thailand to better protect migrant worker
rights, and urge Thailand as a labor receiving state to act in accordance
with the declaration on migrant workers to “promote fair and
appropriate protection, payment of wages, and adequate access to decent
working and living conditions for migrant workers” and
“provide migrant workers, who may be victims of discrimination,
abuse, exploitation, violence with adequate access to the legal and
judicial system of the receiving state.” AICHR should act under its
mandate to request information from ASEAN member states and conduct
studies on thematic issues of human rights to expand its attention to the
plight of migrant workers in Thailand.

ASEAN, in line with its commitment in the ASEAN Charter to
encourage full participation in policy-making by the peoples of ASEAN,
should endorse and promote an approach of involving migrant workers
associations, NGOs, trade unions, and other civil society organizations in
the work of the inter-governmental ASEAN Committee on Migrant Workers
(ACMW). ASEAN should press Thailand, as one of the four core members of
the Drafting Subcommittee of the ACMW (along with Indonesia, Malaysia, and
the Philippines), to include civil society representatives as the ACMW
drafts an ASEAN-wide agreement on protection of migrant worker rights in
accordance with article 22 of the ASEAN Declaration on the Protection and
Promotion of the Rights of Migrant Workers.

To the International
Labor Organization

Develop effective, grass-roots
based programs to expand education on trade union rights and human rights
for migrant workers from Burma, Cambodia, and Laos in Thailand that will build greater understanding among migrant workers on effective measures to
address workplace grievances and other violations of fundamental rights.

Support greater capacity
building and effective monitoring of performance within the Ministry of
Labor to publicize labor rights under Thai law, to conduct inspections of
workplace conditions, create accessible complaints mechanisms, and respond
effectively and in a time-bound manner to such complaints.

Provide technical assistance to the Ministry of Labor on
expanding labor protections to domestic workers.

To the Governments of Burma, Laos, and Cambodia

Establish an effective migrant
labor liaison office, located within the embassies in Bangkok, with a
clear mandate for protection of the human and labor rights of their
nationals who have migrated to work in Thailand. Ensure that these migrant
labor liaison offices should have a clear policy commitment to help, and
not punish migrants from their countries, and provide personnel and
resources to effectively reach out to migrants, receive complaints over
the phone and in person, provide support for access to legal redress, and
effectively assist migrant workers’ with grievances against
authorities and employers. These offices should also actively liaise with
the Department of Labor Protection and Welfare to ensure that labor
inspectors are informed about and take action against workplaces employing
migrant workers that fail to follow the Labor Protection Act of 1998, the
Labor Relations Act of 1975, and all other labor laws and regulations.

Drastically improve formal recruitment procedures set out
in bilateral agreements with Thailand, especially providing full
disclosure of recruitment fees and providing pre-departure education on
labor and human rights.

Demand effective Thai government efforts to ensure
compliance with provisions of bilateral agreements that call for extending
full protection of Thai labor laws to migrants recruited through these
agreements.

To the United States,
European Union Members States, Australia, Canada, and Other Bilateral Donors

Instruct embassies in Bangkok to closely monitor cases of migrant worker abuse and publicly and consistently call
upon the Thai government to take concrete actions to hold responsible
those perpetrating the abuses.

Press the Thai government to
ensure that the rights of migrant workers and their families are protected
in line with obligations set out in ILO core conventions and international
human rights instruments.

Provide greater assistance to local NGOs and migrant
associations working to protect the rights of migrant workers and their
families in Thailand. This includes expanding support and training for caseworkers
and lawyers to pursue cases of abuse against migrant workers.

Appendix I: Questionnaire

Questions

(1)Please give me the following personal
details about you -- name (pseudonym), gender, ethnicity, age, place of origin
(state/division), when was the first time you came to Thailand, how long you
have been in Thailand this time, what languages do you speak (and especially,
do you speak good Thai).

(2)Are you registered to work in Thailand now? Have you ever been registered to work in Thailand?

(3)Do you now have an identity document,
and if so, what is it? (For example, migrant worker card, national ID,
passport, etc.) Are you able to hold in your hand the original document?
If not, who has your document now (for example, government officials (police),
supervisor/employer, broker, others)? If do not have the original of your
document with you, do you have a photocopy of the document? Can you get
the original document from the person who has it, and if so, under what
circumstances?

ØPlease
give the specifics of each incident of harassment or abuse, such as date, time,
specific group(s) of officials involved, place, presence of witnesses, etc.

(5)Do you have to pay any sort of
protection fees to any person so that you are not arrested? If so, how
much do you pay and who do you pay it to? Do you have to perform other
work or activities, or purchase goods, in order to be protected from
arrest? Please explain, and do you feel safe as a result?

(6)Have you faced harassment or abuse at
work by your employer or supervisors? (For example, physical beatings,
verbal harassment and abuses, intimidation, held against your will/not allowed
to leave the workplace?)

ØDid
you discuss this with other workers? Did you try to work together to
solve problem and if so, how? What happened?

(7)In the past two years, have you
changed your employer? If so, how did you do it? Did you face any
problems or difficulties in changing your employer? Please explain.

(8)Restrictions on freedom of association

ØWhat
has been your experience with trying to organize workers (such as holding
meetings, trying to improve the situation at work)? Please explain.

ØHave
you ever been involved in trying to establish a workers’ group,
association, or union? Please explain what happened.

ØHave
you ever been involved in trying to present demands to your employer or
government authorities about the situation at your work? What happened?

ØIf
your employer or a government official found out about your involvement in the
workers’ group, association or union – what happened? (For
example -- threats, retaliation, firing from job, violence, etc.)

(9)When and where do you meet other
migrants when you are not at work? Do you have any problems gathering
with other migrants at those places?

ØHave
you faced any restrictions on freedom of assembly, such as attending community
gatherings, sports activities, religious ceremonies, or other events involving
social or cultural life and practice of your beliefs?

ØDo
you face any curfew restrictions from the authorities or employers? If
so, please explain.

(10)What kind of
restrictions do you face on communications using land-line phones, mobile
phones, regular mail and any other form of communication (computers,
internet)? If so, please explain in detail.

(11)Freedom to
travel/mobility -- How did you go from the border to your place of work?
Have you traveled in Thailand (outside the province) and why? Where did
you go, how much did you pay to go there – and please give details of any
bad experiences? Have you ever wanted to travel outside the province but were
prevented from doing so? What or who stopped you from traveling?

(12)How do you travel
locally? Are you allowed to drive a bicycle, motorcycle or a car?

ØIf
you are not allowed to drive a motorcycle or a car, what impact does this have
on your life and freedom of movement?

ØHave
you ever experienced any problems from the authorities about using a bicycle,
motorcycle, or car? Please describe.

(13)In cases of abuse
and harassment that you have faced, what did you do and who did you call/talk
to? Describe any cases that have happened to you.

ØBy
employers?

ØBy
authorities?

ØBy
Thai people who are not authorities?

ØBy
other members of the migrant community?

ØBy
others?

ØWas
the problem(s) resolved? If so, how?

ØIf
you reported the case to the Thai authorities, what did they do?

(14)Do you know about
or have you ever witnessed retaliation or attacks against organizations
supporting migrants?

(15)Have you
personally seen or witnessed physical violence/attacks against another migrant
worker or workers? If so, please explain.

(16)Do you have any
questions that you would like to ask the interviewer? Do you have any
additional things that you want to share? Do you have any suggestions or
recommendations for this research?

Additional
question, if time is available – for registered migrant workers:

(17)If you are
registered, did you pay yourself for your migrant worker card? If you did
not pay yourself, are you free to leave your work before you pay back the
money?

Human
Rights Watch is preparing a report regarding the situation of migrant workers
from Burma, Cambodia, and Laos who are living and working in Thailand. Our
report explores restrictions placed on the rights of migrants in law and
policy, violence perpetrated against migrants by both state and non-state
actors, forced labor and trafficking of migrants, extortion of migrants by
state officials, and violations of labor rights.

We
are writing to ensure that our report properly reflects the views, policies,
and practices of the Royal Thai Government regarding treatment of migrant
workers in Thailand.

Human
Rights Watch is committed to producing material that is well informed and
objective. We hope you or your staff will respond to the attached questions so
that your views are accurately reflected in our reporting. In order for us to
take your answers into account in our forthcoming report, we would appreciate a
written response by February 13, 2010.

Please
do not hesitate to include any other materials, statistics, laws or policies,
or information on government actions regarding migrant workers from Burma,
Cambodia, and Laos in Thailand that you think might be relevant.

Thank
you in advance for your time in addressing these urgent matters.

Sincerely,

Brad
Adams

Director,
Asia division

cc:

H.E.
Kasit Piromya, Minister of Foreign Affairs

H.E.
Chaovarat Chanweerakul, Minister of Interior

H.E.
Phaitoon Kaeothong, Minister of Labor

Pol.
Gen. Patheep Tanprasert, Acting National Police Chief

Questions

Provincial
decrees:

1.)What is the
current policy of the Thai government towards the provincial government decrees
adopted in 2006 and 2007 in Phuket, Phang Nga, Surat Thani, Rayong, and Ranong[233]
that establish restrictions on the rights of migrant workers, including
night-time curfews, limitations on assembly, restrictions on movement,
prohibitions on ownership of mobile phones, and bans on use on driving motor
vehicles?

Are these
decrees still in effect?

Does the Thai
government have any plans to revoke or alter these decrees?

2.)What is the
Thai government’s policy response to the conclusions of the National
Human Rights Commission of Thailand’s (NHRCT) in case 404/2551 on
“Human Rights: The Case of the Provinces Issuing Provincial Decrees that
Violate the Rights of Migrant Workers”?

In that
decision, the NHRCT found that “the decrees contravene article 30 [of the
2007 Thai Constitution] which provides ‘All persons shall be equal before
the law and shall enjoy equal protection under it....Unjust discrimination
against a person on grounds of difference in origin, race, language, sex, age,
physical conditions or health, economic or social status....shall not be
permitted.’” The NHRCT also determined that bans on use of mobile
phones in the decrees violate article 36 of the Constitution where it is stated
that, “A person shall enjoy the liberty to communicate with one another
by lawful means.” Finally, the NHRCT ruled the curfews and restrictions
on gatherings of more than five migrants are contrary to article 63 of the
Constitution, which states: “A person shall enjoy the liberty of peaceful
and unarmed assembly.”

3.)What is the
legal status of orders issued by Samut Sakhon Governor Wirayuth Euamampa in
memorandum no. SK 0017.2/Wor 3634 to the provincial Department of Employment
and employers on October 26, 2007 and no. SK 0017.2/Wor 13723 to the provincial
Department of Employment and employers November 28, 2007?

These orders
found that migrant workers should not be allowed to hold cultural events or
activities and required employers to maintain strict controls over their
migrant workers or face legal punishment. What is the policy of the Thai
government regarding these orders?

Migrant
registration and nationality verification:

1.)The Thai
government has publicly stated that all registered migrant workers from Burma,
Cambodia, and Laos who do not apply to enter the nationality verification
system before February 28, 2010 will be subject to immediate deportation.

On what date
will this deportation operation begin?

Has the Thai
government issued orders or guidelines to Thai police, immigration officers,
and other relevant state officials on how to conduct this operation in a way
that respects the human rights of migrant workers?

Can you
please provide Human Rights Watch with the details of these instructions?

Has the Thai
government developed a monitoring plan to effectively ensure violations of
human rights do not occur during this deportation operation?

2.)What is the
policy of the Thai government regarding employment for migrant workers in
Thailand, such as ethnic Rohingya from Burma, who are not likely to receive
nationality verification from the Burmese government?

3.)What is the
policy of the Thai government regarding deportation from Thailand of stateless
persons?

Abuses
against migrant workers:

1.)What actions
are being taken by the Thai government to prevent beatings, sexual harassment,
and other human rights abuses against migrants in detention?

What is the
Thai government doing to hold accountable officials who are responsible for
such abuses?

2.)What actions
are being taken by the Thai government to prevent bribe-taking and other forms
of extortion by law enforcement, immigration, and other officials in their
dealings with migrants?

What is the
Thai government doing to hold accountable officials who are responsible for such
abuses?

3.)What actions
are being taken by the Thai government to prosecute crimes committed against
migrant workers?

When the
victim of a crime is a migrant, what principles must Thai police abide by
during the investigation, evidence collection and analysis, and enforcement
against criminal suspects?

4.)What legal
and other measures has the Thai government established to prevent the practice
of employers seizing and holding the original identity documents (such as
migrant worker ID cards and passports) of migrant workers?

Can the Thai
government provided statistics on the number of cases where legal action has
been taken against employers for seizing and holding the original identity
documents of migrant workers?

5.)In a speech
that you made during the global launch of the UNDP Human Development Report
2009 held at the Vithes Samosorn room at the Ministry of Foreign Affairs,
on October 5, 2009 you stated, “It is our Government’s policy to
ensure that migrants can enjoy their freedom and social welfare in Thailand
while their human rights are duly respected...migrant workers, regardless of
their legal status, can seek justice in Thailand’s court system for any
violent abuses to which they have been subjected, and which are covered by
these laws.”

What concrete
steps has the Thai government taken to inform migrant workers of these rights,
provide free legal assistance for migrant workers wishing to file complaints,
provide interpretation/translation assistance for migrants who cannot speak or
read Thai, and ensure migrant workers do not face retaliation from state
officials and non-state actors named as defendants in legal cases?

6.)Is the Thai
government aware of allegations of possible collusion between immigration
officials in Mae Sot to provide information on deportees to brokers connected
with the Democratic Karen Buddhist Army (DKBA) in Burma?

Human Rights
Watch has learned that migrant workers who are deported to DKBA controlled
territory in Burma face extortion demands by brokers and/or DKBA soldiers and
migrants who cannot pay ransom are physically abused, forced to labor in Burma,
or sold to human traffickers in Thailand. Therefore, what is the justification
for deporting migrant workers to areas directly under the control of the DKBA?

7.)Why does the
Thai government continue to deny non-Thai nationals the right to establish
labor unions and the right to serve as executive committee members of a legally
registered union?

Does the Thai
government plan to amend discriminatory provisions in article 88 and 100 of the
Labor Relations Act of 1975?

8.)What is the
legal justification behind the policy denying driver’s licenses to
migrant workers from Burma, Cambodia and Laos?

Does the Thai
government plan to revise this policy to grant migrant workers the right to
apply for and receive a driver’s license?

International
human rights treaties and standards:

1.)Does the Thai
government intend to ratify the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, Supplementing the United
Nations Convention Against Transnational Organized Crime?

2.)Does the Thai
government intend to ratify ILO Conventions 87 (Freedom of Association) and 98
(Right to Organize and Collectively Bargain)? If so, what is the concrete
timetable for these ratifications?

3.)Does the Thai
government intend to ratify the International Convention on the Protection of
All Migrant Workers and Members of Their Families?

If so, when
will the Thai government make this ratification?

If not, why
not?

4.)Thailand ratified
the International Convention on the Elimination of all Forms of Racial
Discrimination (ICERD) in 2003, and its first report to the Committee on the
Elimination of Racial Discrimination was due five years ago, in 2004. What is
the timetable for the Thai government to submit its required report?

Acknowledgements

This report was written by Phil Robertson, consultant with the Asia division of Human Rights Watch. It was edited by Lisa Anderson, consultant with the Asia division; Sunai Phasuk, Thailand researcher in the Asia division; Elaine Pearson, deputy director of the Asia division; Bill Frelick, Director of the Refugee Policy division; Bede Sheppard, researcher in the Children’s Rights division; Nisha Varia, senior researcher in the Women’s Rights division; James Ross, legal and policy director; and Joseph Saunders, deputy director in the program office of Human Rights Watch.

Production assistance was provided by Diana Parker, associate in the Asia division; Grace Choi, publications director; Fitzroy Hopkins, production manager; and Anna Lopriore, photo editor, who assisted with the photo feature.

Human Rights Watch would like to thank the MAP Foundation and Yaung Chi Oo Workers Association for their assistance. Human Rights Watch would also like to thank all the migrant workers from Burma, Cambodia, and Laos we interviewed who made this report possible, as well as others who took risks to make information available to us.

[2]
Between 70 to 80 percent of the migrant workers originate from Burma, where
human rights abuses, economic mismanagement, and political repression by the
Burmese government, the State Peace and Development Council (SPDC), and the
armed forces prompt migrants to cross borders to seek refuge and economic
survival. Burmese migrants interviewed in Thailand cited the following among
their reasons for leaving Burma: forced labor, extortion, arbitrary taxation,
confiscation of land and property, and movement restrictions that negatively
impact villagers’ agricultural work. Sending one or several members of
the family to seek work in Thailand and send back remittances is thus best
understood as a survival strategy for many Burmese families.

[4]
According to the International Organization for Migration (IOM), the growth
rate of the population aged 15-39 years between years 2005-2010 is estimated at
2.97 percent for Laos, 2.93 percent for Cambodia, 0.596 percent for Burma, and negative 0.61 percent for Thailand. Federico Soda, regional program development officer,
IOM, “Migration in the Greater Mekong Subregion: A Background Paper for
the 4th Greater Mekong Subregion Development Dialogue,” Beijing, May 5, 2009,
http://www.adb.org/Documents/Events/2009/WGHRD-9/Background-Paper.pdf (accessed
January 16, 2010). The UNDP reported in 2001 that under-15-year-olds comprised
the following percentages of population: 44.6 percent for Cambodia, 43 percent for Laos, 33.5 percent for Burma, and 27 percent for Thailand. United Nations
Development Programme (UNDP), World Development Report 2001: Making New
Technologies Work for Human Development, (New York, 2001), p. 154-157.

[6]
Chomaiporn Sintubrasit, director of working group to protect against and solve problems
of labor protection, Department of Labor Protection and Welfare, Ministry of
Labor, “Benefits and Obstacles for Foreign Workers in Thailand,”
and Human Rights and Development Foundation (HRDF), “Project Narrative
Report on Seminar: Managing and Understanding Labour Migration through Social
Dialogue at the Provincial Level,” PowerPoint presentations at conference
Managing and Understanding Labour Migration through Social Dialogue at the
Provincial Level, Hang Dong district, Chiang Mai province, October 26-28, 2009.

[14]
Thailand Department of Employment, “Regulations of the Department of
Employment on the Principles, Methods and Conditions for Paying Informant Fees,
Rewards and Expenses in Implementing Work under the Alien Employment
Act”, issued 2009, copy on file with Human Rights Watch.

[21]
The SPDC government form issued to migrant workers for applying for nationality
verification requires detailed information about the applicant, his or her
father, mother, spouse, and children (including citizenship card number,
race/religion, citizenship status, occupation, and address in Burma), photo, and thumbprint; copy on file with Human Rights Watch.

[22]
The Burma Immigration (Emergency Provisions) Act of 1947, arts. 3(2) and 13(1),
and Law Amending the Burma Immigration (Emergency Provisions) Act, 1947 (State
Law and Order Restoration Council Law No. 2/90).

[26]
See “Sonthi alarmed at migrant birth rate,” The Nation,
November 15, 2007; see also Asian Human Rights Commission, “THAILAND: Denial of rights to most vulnerable will rebound onto all”, AS-276-2007,
November 23, 2007, http://www.ahrchk.net/statements/mainfile.php/2007statements/1283/,
(accessed on May 1, 2009).

[28]
Shah Paung, “Pregnant Migrant Workers Fear Repatriation From Thailand,”
The Irrawaddy, November 26, 2007, http://www.irrawaddy.org/print_article.php?art_id=9422
(accessed on July 26, 2009). An NGO worker from the Labour Rights Promotion
Network in Samut Sakhon told Human Rights Watch about an incident that occurred
when she accompanied a registered woman migrant who had been gang-raped
repeatedly by six men to a local hospital. During the examination, the
admitting nurse told the NGO worker that if the victim was found to be
pregnant, she must be deported, and she referred to Gen. Sonthi’s policy.
Human Rights Watch interview with official of Labor Rights Promotion Network,
Mahachai district, Samut Sakhon province, August
19, 2008.

[36] Ibid. art. 26 (emphasis
added). See also Human Rights Committee, General Comment No. 15 (Position of
Aliens), July 22, 1986, paras. 2, 7, & 9. This view was reaffirmed by the
Human Rights Committee in its General Comment No. 31 (Nature of the General
Legal Obligation Imposed on States Parties to the Covenant) May 26, 2004,
CCPR/C/21/Rev.1/Add.13, para. 10.

[37]
Committee on Economic, Social and Cultural Rights (ESC Committee) General Comment
No. 20 (2009), para. 30. The ESC Committee expressed this opinion with full
recognition of article 2(3) of the ICESCR (“Developing countries, with
due regard to human rights and their national economy, may determine to what
extent they would guarantee the economic rights recognized in the present
Covenant to non-nationals.”).

[49]
Memorandum from Nirand Kalayanmitr, Governor of Phuket Province,
“Announcement of the Province of Phuket on Setting the System to Control
Alien Workers,” (ประกาศจังหวัดภูเก็ตเรื่องการจัดระบบในการควบคุมแรงงานต่างด้าว),
December 19, 2006; Memorandum from Vinai Buabradit, Governor of Phang Nga
Province, “Announcement of the Province of Phang Nga on Determining the
Administrative Measures to Control Illegal Alien Workers,” (ประกาศจังหวัดพังงาเรื่องการกำหนดมาตรการเพื่อจัดระเบียบแรงงานต่างด้าวหลบหนีเข้าเมือง),
June 9, 2007; Memorandum from Kanjanapa Keemun, Governor of Ranong Province,
“Announcement of the Province of Ranong on Determining Measures for
Specific Migrants,” (ประกาศจังหวัดระนองเรื่องกำหนดมาตรการจัดระเบียบคนต่างด้าวบางจำพวก),
February 23, 2007, and Memorandum from Polwat Chayanuwat, Governor of Rayong
Province, “Announcement of the Province of Rayong on Determining the
Measures to Control Illegal Alien Workers,” (ประกาศจังหวัดระยองเรื่องการกำหนดมาตรการควบคุมแรงงานต่างด้าวหลบหนีเข้าเมือง),
February 16, 2007; and Memorandum “Announcement of the Province of Surat
Thani on Determining the Measures to Control Illegal Alien Workers,” (ประกาศจังหวัดสุราษฎร์ธานีเรื่องการกำหนดมาตรการควบคุมแรงงานต่างด้าว),
January 2007.

[50]
National Human Rights Commission of Thailand, “Human Rights: The Case of
the Provinces Issuing Provincial Decrees that Violate the Rights of Migrant
Workers” (สิทธิแรงงาน
กรณีจังหวัดออกประกาศจังหวัดโดยละเมิดสิทธิมนุษยชนของแรงงานข้ามชาติ),
case 404/2551. In that NHRC hearing, representatives from Rayong province also indicated
Royal Thai Army region 4 and ISOC region 4 also issued order 2/2550 to control
alien persons and communities in Ranong and Chumpon on February 19, 2007, and
their representatives were involved in developing procedures for implementation
in Ranong. Those representatives allegedly expressed support for extending the
provincial decrees to all the remaining provinces in the south of Thailand, and identified people smuggling/human trafficking and illegal money remittances
as the practices that threatened Thai national security and required a ban on
mobile phone use by migrants.

[58]
The wiharn is the area of the Buddhist temple housing the primary Buddha
image in the temple complex.

[59]
The next day, when a representative of the migrants went to retrieve the ID
cards of the five migrant workers at the Muang district Surat Thani police
station, he was required to purchase and hand over two bottles of Regency
Brandy as a bribe to the officers to get the ID cards returned. Human Rights
Watch interview in Bangkok with Kyaw Lwin, migrant worker from Burma living in Surat Thani, January 29, 2009.

[62]
Both Phang Nga and Phuket provinces provide exemptions to the mobile phone ban
if the employer of the migrant workers draws up a written list of migrant
workers (with their phone numbers) that he authorizes to use phones, and
submits this to the district officer or other appropriate local government
official.

[71]
For more information on the problems faced by migrants to register motorcycles,
see Human Rights and Development Foundation (HRDF), “Migrants and
Motorbikes: Unlawful Police Practices and Systematic Discrimination in Northern Thailand,” February 2009.

[72]
Legal Office, Department of Land Transport, decision no. Kor Kor 0408/Wor 244,
“Procedures for Registration of Vehicles of Aliens Who Have Entered the
Country Unofficially,” October 13, 2009. Specifically, migrants must present
Thai government-issued identity documents (such as their alien registration
card and/or work permit) and documents showing their place of residence in Thailand (house registration documents or migrant worker history [Tor Ror 38/1] document).

[82]
When Aung Aung went to the Maharaj Nakorn Chiang Mai hospital on August 10,
2009, eight days after the incident, the inspecting doctor still found severe
bruising on his body where police struck him. Doctor’s certificate no.
8518/28, issued by Dr. Petchpailin Boriboon, August 10, 2009, copy on file with
Human Rights Watch.

[83]
Letter from Aung Aung to the National Human Rights Commission of Thailand,
September 4, 2009, and reply from Suvutti Sukitjagorn, Sor Mor 0003/859, NHRCT
to Aung Aung, September 11, 2009.

[86]
The only medication he was given was basic pain-killing medication, likely
paracetamol. Oem Borey’s family had to give money to the police to
purchase the medication.

[87]
Under the Convention against Torture, art. 2(1), Thailand is obliged to “take
effective legislative, administrative, judicial or other measures to prevent
acts of torture.”

[88]Constitution
of the Kingdom of Thailand B.E. 2550 (2007), Foreign Law Bureau Office of the
Council Of State, www.lawreform.go.th, www.krisdika.go.th, art. 32.

[89]
Puttanee Kangkan, Working Group on Justice and Peace, “Understanding and
Practice of Torture in the Thai Context,” June 2008, http://wgjp.org/wp-content/uploads/2009/02/torture_aea_eng.pdf
(accessed July 7, 2009).

[91]
Human Rights Watch interview with Saw Htoo and his wife, Oolah, Mae Sot
district, Tak province. All quotations from Saw Htoo in this section of the
report are taken from this interview, May 18, 2009.

[92]Saw
Htoo described how the sergeant arrested and handcuffed him in front of his
wife and family, and then publicly beat him in front of other gang members and
migrant workers:

He [the sergeant] yelled, “You see, this
is my luk nong, see what happens when someone does not follow my order! I
have arrested him now and I am going to send him to jail.” Then he
slapped me twice in the face, and then I tried to wai [perform a formal
Thai greeting], and he kicked me in the stomach and I fell backwards. Then he
kicked me again in the back.

Over the course of several hours, Saw Htoo was
severely beaten in several different public areas. Finally, he was taken to an
area and told by the police sergeant:

“You have to sign this paper, if you
don’t sign the paper you have to stay here.” What he meant was that
I would be killed and my body would stay in that area. So I pleaded with him,
“Please don’t do me like that boss, I have a small daughter! If I
made a mistake, please forgive me—I will do whatever you say.” I hugged
his feet to ask for forgiveness, but [the police sergeant] stood up and kicked
me in the chest. I tried to roll on the ground to avoid him, but as I was
rolling, he kicked me two or three more times. Then he pulled out his gun, and
he cocked it—and put the barrel of the gun to my temple—and pulled
the trigger. There was a “ka-chik” from the gun, but there was no
bullet. I was so shocked, I could not believe it.

According to Saw Htoo, the police sergeant
forced him to fingerprint a Thai language document he could not read, but which
he says had the Garuda symbol of the Royal Thai government. In exchange for his
release, Saw Htoo said he agreed to pay 30,000 baht to the police sergeant. The
sergeant again beat Saw Htoo, and finally let him go after Saw Htoo’s
wife made an initial payment of 6000 baht. Saw Htoo said:

I know if I run away, two things can happen to
me—either I will be arrested or I will be killed. So I have decided to
confess … I can go to jail and in that way I cannot be killed. I have done
many things for [the police sergeant] … I don’t want to stay with
this [sergeant] anymore, I don’t want to even hear his name … I
have done so many things for him and look what happens—I will not
disappear like that…. He has treated me so badly.

[93]
Saw Htoo described the compound as being surrounded by a two-meter wall topped
with barbed wire, complete with worker housing, a snooker hall, and a beer and
food shop. The sergeant also maintained a house in the compound.

[94]
Human Rights Documentation Unit (HRDU) of National Coalition Government of the
Union of Burma (NCGUB), “Above the Law: Systematic Human Rights
Violations by Thai Government Officers against Burmese Migrant Workers in Tak
Province,” undated and unpublished report documenting cases in Mae Sot
that occurred between January 2001 and April 2003, copy on file with Human
Rights Watch.

[95]
Rubber tappers and hunters use lights mounted on a hat or helmet to navigate
the pitch dark of the rubber plantations in the early hours of the morning, in
part to avoid poisonous snakes and other hazards present.

[102]
Letter AAA 47/2551 from MAP Foundation for the Health and Knowledge of Ethnic
Labour, to Commander of Thai Muang district police station, April 23, 2008; and
email communication from MAP representative (name withheld) to Human Rights
Watch, July 2, 2009, noting that the MAP letter did not receive a response.
Copy on file with Human Rights Watch.

[114]
According to her account, Bee’s case clearly constitutes trafficking
because it fulfills all three areas of the international definition of human
trafficking. She was transported and transferred, there was clear use of force,
and she was delivered into a situation of exploitation for prostitution.

[115]
According to the 2001 UN convention against trafficking, “`Trafficking in
persons’ shall mean the recruitment, transportation, transfer, harboring
or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs.” Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children, Supplementing
the United Nations Convention on Transnational Organized Crime (Trafficking
Protocol), adopted November 15, 2000, G.A. Res. 55/25, annex II, 55 U.N. GAOR Supp.
(No. 49) at 60, U.N. Doc. A/45/49 (Vol.I) (2001), entered into force December
25, 2003, art. 3(a).

[119]
The Anoma factory raid occurred before the new Anti-Trafficking in Persons Act
B.E. 2551 (2008) came into effect on June 5, 2008. Prior to the new law’s
enactment, males who were 18 years or older could not legally be considered as
victims of human trafficking in Thailand. Most of the remaining migrant workers
freed at Anoma would have been likely classified as trafficking victims, say
NGOs directly involved in the raid. Human Rights Watch discussion with Sompong
Srakaew, director, Labor Rights Promotion Network (LPN), Mahachai district,
Samut Sakhon province, May 25, 2009. The US State Department’s 2008
report on human rights abuses in Thailand noted that 72 persons were held
against their will at the factory, including 10 who were later screened and
determined to be trafficking victims by the Thai government, US Department of
State, “Country Reports on Human Rights Practices – 2008:
Thailand.”

[126]
According to research by The Mirror Foundation, there are gangs involved with
deceiving or seizing men from major transport terminals in Bangkok and
delivering them into situations of forced labor on fishing boats. The Mirror
Foundation, “Labour Exploitation Situation in the Fishing Industry:
Mahachai, Songkhla, Ranong and Pattani,” March 25, 2009 and “Five
Favorite Spots of Traffickers Identified,” The Nation, December
19, 2008. An anti-trafficking police officer corroborated that such gangs exist
and are active. Human Rights Watch interview with lieutenant colonel,
Anti-Trafficking Police, Bangkok, November 24, 2009.

[128]
Similar cases were reported in research conducted by the US Senate’s
Committee on Foreign Relations. US Senate Committee on Foreign Relations,
“Trafficking, Extortion and Acts of Violence Targeting Burmese Migrants
in Malaysia and Southern Thailand,” 111th Congress, 1st
Session, April 3, 2009.

[134]
ILO Convention No. 182 concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labour
Convention), adopted June 17, 1999, 38 I.L.M. 1207 (entered into force November
19, 2000), ratified by Thailand February 16, 2001, art. 3: “For the
purposes of this Convention, the term the worst forms of child labor comprises:
(a) all forms of slavery or practices similar to slavery, such as the sale and
trafficking of children, debt bondage and serfdom and forced or compulsory
labor, including forced or compulsory recruitment of children for use in armed
conflict; (b) the use, procuring or offering of a child for prostitution, for
the production of pornography or for pornographic performances; (c) the use,
procuring or offering of a child for illicit activities, in particular for the
production and trafficking of drugs as defined in the relevant international
treaties; (d) work which, by its nature or the circumstances in which it is
carried out, is likely to harm the health, safety or morals of children.”
See also ILO Recommendation concerning the Prohibition and Immediate Action for
the Elimination of the Worst Forms of Child Labour, June 17, 1999, ILO No.
R190, art. 3.

[136]
The Anti-Trafficking in Persons Act B.E. 2551 (2008) in section 6(1) defines
trafficking as “procuring, buying, selling, vending, bringing from or
sending to, detaining or confining, harboring, or receiving any person, by
means of the threat or use of force, abduction, fraud, deception, abuse of
power, or of the giving money or benefits to achieve the consent of a person
having control over another person in allowing the offender to exploit the
person under his control.” Section 4 of the law defines
“exploitation” as “seeking benefits from the prostitution,
production or distribution of pornographic materials, other forms of sexual
exploitation, slavery, causing another person to be a beggar, forced labour or
service, coerced removal of organs for the purpose of trade, or any other
similar practices resulting in forced extortion, regardless of such
person’s consent.” Section 4 of the law also defines “forced
labour or service” as “compelling the other person to work or
provide service by putting such person in fear of injury to life, body,
liberty, reputation or property, of such person or another person, by means of
intimidation, use of force, or any other means causing such person to be in a
state of being unable to resist.”

[140]
Article 64 of the Immigration Act of B.E. 2522 (1979) reads: “Whoever
know of any alien entering into the Kingdom in contravention of this Act, and
harbors, hides or in any manner assists said alien to evade arrest, shall be
punishable by imprisonment not exceeding 5 years and a fine not exceeding
50,000 baht. Whoever allows an alien entering into the Kingdom in contravention
of this Act to stay with him, it is first presumed that said person is aware
that the alien concerned entered the Kingdom in contravention of this Act,
unless it can be proved that he does not know, even though proper caution has
been exercised.” Immigration Act, B.E. 2522 (1979), Ministry of Interior,
May 30, 1979, http://www.unhcr.org/refworld/docid/46b2f9f42.html (accessed 28
July 2009), art. 64.

[141]
Human Rights Watch conversation with officers of YCOWA, Mae Sot district, Tak
province, December 15, 2008. At the time, one of the YCOWA’s officers had
been arrested on the charge and YCOWA was in the process of negotiating for his
release.

[145]
Human Rights Watch Interviews with Ma Myo, migrant worker from Burma, Mae Sot
district, Tak province, September 4 and December 15, 2008. Mae Sot-based NGOs told
Human Rights Watch that holding workers for long periods at a checkpoint is a
common police tactic in the area, designed to frustrate workers into agreeing
to pay bribes to be released.

[146]
The Mae Tao Clinic is a non-profit clinic operated by Dr. Cynthia Maung that
provides free medical services to migrant workers. The clinic is popular with
migrant workers since they can receive support and services from Burmese
providers.

[150]
The Surat Thani provincial minimum wage is 155 baht/day, meaning the fine is
equivalent to approximately 135 days’ pay, more than four months of work.
However, most undocumented migrant workers do not even receive the legal
minimum wage. “Announced minimum wage rate since 1 June 2008,” http://eng.mol.go.th/statistic_01.html.

[170]
International Organization for Migration (IOM), “Migration Statistics in Thailand: 2004-2009,” undated, produced with information from Ministry of Labor, Thailand.

[171]
International Organization for Migration (IOM), “Migration Statistics in Thailand: 2004-2009,” produced with information from Ministry of Labor, Thailand.

[172]
Thailand Department of Employment, “Procedures for Registration and
Hiring and Requesting Permission to Work for Alien Migrant Workers from Burma,
Cambodia and Lao PDR, 2009,” June 2009.

[173]
Article 17 states “In certain special cases, the Minister, by the Cabinet
approval, may permit any alien or any group of aliens to stay in the Kingdom
under certain conditions….or may consider exemption from being [in] conformity
with this Act.” Immigration Act, B.E. 2522 (1979).

[174]
The requirement that she have such documents is set forth in Ministry of Labor,
Social Security Office circular RS 0711/W 751, October 25, 2001, copy on file
with Human Rights Watch.

[175]
Human Rights and Development Foundation, “Thailand’s Systematic
Discrimination Against Migrant Work-Related Accident Victims: Learning from the
‘Nang Noom’ Test Case,” submitted to the ILO, September 2008;
Royal Thai Government Social Security Office Memorandum RS 0711/W 751
“Providing Protection for Migrant Workers Who Incur Work Related
Accidents or Illnesses,” signed by Anuphort Bunnak, Deputy Director
General acting on behalf of the Secretary General of the Social Security Office
to provincial Governors of all provinces, October 25, 2001.

[176]
International Labor Organization, Convention 19 concerning Equality of
Treatment for National and Foreign Workers as regards Workmen's Compensation
for Accidents, adopted June 5, 1925, seventh session of the ILO Conference, Geneva, Switzerland, entered into force September 8, 1926.

[189]
A worker is permitted to change employers if the worker can find a new employer
within seven days and can persuade the old employer to sign a form releasing
the worker from their employ, or can prove to a DLPW labor inspector that the
worker left the employer because the worker’s rights under the labor law
were being violated. In both instances, the onus is on the worker to either
convince the employer to let the worker go, or to raise a complaint (which
presumes the worker has the knowledge, Thai language capacity, and time to
prepare said complaint) and prove to a government official that there were
labor rights violations. In practice, most such cases filed are done so only
with the assistance of a labor rights support NGO. See section on migrant
registration policies for more details.

[193]
American Center for International Labor Solidarity, The Struggle for Worker
Rights in Thailand, pp. 80-81.

[194]
ILO Declaration on Fundamental Principles and Rights at Work, adopted June 19,
1998, 86th Session of the International Labour Conference, Geneva, Switzerland. Article 2 of the declaration states that “all Members, even if
they have not ratified the Conventions in question, have an obligation arising
from the very fact of membership in the Organization to respect, to promote and
to realize, in good faith and in accordance with the Constitution, the
principles concerning the fundamental rights which are the subject of those
Conventions, namely: (a) freedom of association and the effective recognition
of the right to collective bargaining.”

[198]
National Human Rights Commission of Thailand, “Situation of Violation of
Labor Rights and Lessons Learned from Six Years of the Subcommittee on Labor
Rights” (Thai translation), Bangkok, 2008, p. 194.

[199]
Yos Rangseay stated he did not want to provide Human Rights Watch with the full
name of the factory owner or the name of the factory because he feared possible
retaliation against him if the owner came to know he was speaking out about his
experiences there.

[201]
The owner allegedly levied fines of three times the daily wage for each day of
leave taken by a worker. Article 28 of the Labor Protection Act of 1998
provides that all employers must provide a weekly holiday of not less than one
day per week. Article 76 of the same law sets out the five categories of legal
deductions from wages. None of the categories allows punitive deductions for
taking leave.

[202]
The Lao migrant girl who recently arrived to work at the restaurant and was the
alleged victim immediately told Kao nothing was stolen.

[204]
The Royal Thai government has created an online database of migrant worker
registration information that allows Thai police and other authorized officials
to use the 13-digit code on the migrant worker ID card to check the particulars
of a registration. Throughout the period of her arrest, and despite Kao
Mala’s repeated assertions that she was a registered migrant, it does not
appear that Samut Sakhon police ever ran such a check.

[206]
LPN staff helped Koy file a complaint for more than 80,000 baht in back-pay
(for unpaid overtime and sub-minimum wages) against Koy’s employer, and
demanded return of Koy’s personal possessions left at the restaurant when
she was arrested.

[208]
Saw Lei reports being paid 150 baht per day, from which the employer deducted
an additional 50 baht per day with the promise to pay the accrued amount at the
end of a workers’ service. This arrangement violates article 90 (minimum
wage) and article 76 (legally permissible deductions from pay) of the LPA 1998.

[226]
On April 10, 2008, people smugglers jammed 121 migrant workers from Burma into an airtight seafood container (measuring 6 meters long by 2.2 meters wide)
loaded on a truck headed to Phuket. During the trip, the air conditioning in
the container failed and the driver ignored the banging of the confined
migrants and efforts to call him on his mobile phone. After approximately 90
minutes, the driver stopped and opened the container – and found 54
migrants (37 women and 17 men) had suffocated to death. The driver fled the
scene, and local Thai villagers called the police to the scene. The 67
survivors were arrested and jailed by police for illegal entry.

[227]
“Still no prosecution in tragic death of 54 Myanmar migrants,” MCOT
English News, December 11, 2008, http://enews.mcot.net/view.php?id=7655&t=3
(accessed on August 3, 2009).

[230]
Other examples of this include some of the following: (1) the gunning down of
four migrant workers, including a locally prominent Mon migrant leader, Khaing
Ten, in Surat Thani province, on February 4, 2008, in a case which received
immediate intervention by the Law Society of Thailand and the Federation of
Trade Unions – Burma (FTUB), and the Thai media, since there was a
survivor of the massacre able to testify; (2) the raid of the Ranya Paew
seafood factory in September 2006 in Samut Sakhon, based on research and
coordination led by the Labor Rights Promotion Network (LPN); and (3) the
brutal burning to death of the maid Ma Suu by her employer in Lopburi in July
2002, which again required the support of the Law Society of Thailand and the
FTUB for a conviction to be secured.

[232]
National Statistics Center – National Human Development Reporting
Project, “Labour migration – two sides of the medal,” May 22,
2007 , copy on file with Human Rights Watch.

[233]
Decree from Nirand Kalayanmitr, Governor of Phuket Province,
“Announcement of the Province of Phuket on Setting the System to Control
Alien Workers,” December 19, 2006; Decree from Vinai Buabradit, Governor
of Phang Nga Province, “Announcement of the Province of Phang Nga on
Determining the Administrative Measures to Control Illegal Alien
Workers”, June 9, 2007; Decree from Kanjanapa Keemun, Governor of Ranong
Province, “Announcement of the Province of Ranong on Determining Measures
for Specific Migrants,” February 23, 2007; Decree from Polwat Chayanuwat,
Governor of Rayong Province, “Announcement of the Province of Rayong on
Determining the Measures to Control Illegal Alien Workers,” February 16,
2007; and Decree on “Announcement of the Province of Surat Thani on
Determining the Measures to Control Illegal Alien Workers,” January 2007.